We are greatly interested in presenting you with our ideas for dealing with your intellectual property rights. In addition to current judgements, you can also download our free series of guides CFUpdate and CFCompact. If you would prefer to hold our documents in your hands than to read them on a screen, please send us an e-mail to marketing@cohausz-florack.de. We will then gladly send you the corresponding brochures by post.

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Case law

In order to be able to better assess a legal challenge, it is often helpful to take a look at the groundbreaking decisions that our law firm has been critically involved in. Our attorneys will be happy to advise you on the perspectives this opens up for your individual case.

FRAND verdict based on AVC/H.264 SEP

No right to obtain a license restricted to Germany without taking a worldwide license. No adjustment of royalties for China required. Confirmation of FRAND compliance in case of 2000+ existing license agreementsinjunction claim available.

The groundbreaking FRAND case law of the Düsseldorf Regional Court has been further developed in the present patent infringement proceedings (file no. 4b O 4/17) related to video compression between IP Bridge and Huawei. It was determined that in the light of the established worldwide licensing practice for the AVC / H.264 patent portfolio, the defendants are not entitled to a license only for the patent in suit and its family members. In addition, uniform license rates are also non-discriminatory under antitrust law for the Chinese market. The 2000+ license agreements submitted to the court are FRAND compliant. The caps provided for in the AVC / H.264 license agreement dependent on the number of products are also determined to be FRAND. Compliance with the roadmap according to Huawei ./. ZTE jurisprudence of the EJC and accordingly the injunction claim have been confirmed.

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Verdict of the FCJ concerning the rules for examination for the FPC

The FPC is neither obliged nor entitled to check the relevance of the state of the art that was submitted by the nullity plaintiff without comment.

This judgment put a stop to the practice of nullity plaintiffs of submitting a large number of documents relating to the state of the art without comment. This practice had led to an overload of the FPC on the basis of misunderstood rules for examination. The FPC had applied the assessment criteria from the granting procedure and checked every document submitted for relevance. It was established that this is neither necessary nor permissible in the nullity proceedings. The nullity plaintiff must present the relevance of each document and the relevance of this presentation only has to be examined.

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A data sequence produced in accordance with a patented video compression process enjoys protection as a direct product of the process (MPEG-2 video signal coding)

The BGH ruled that a data sequence as a process product of a patented video compression process enjoys product protection. If such a data sequence is stored on a data carrier, the protection also extends to this data carrier.

The protection of a direct process product was originally created to protect the chemical industry from the import of process products manufactured abroad. This protection puts a product manufactured using a manufacturing process that is protected in Germany but not in the country of manufacture under protection as if the product itself were protected with a product claim. With the decision MPEG-2 video signal coding, the video data as the result of a video compression process are placed under a protection that extends to every embodiment, including those resulting from duplication by mechanical molding.

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Market accepted license defines FRAND conditions

If there is a market acceptance for granting a worldwide license to all affiliated companies, this is decisive for the assessment of FRAND.

The starting point is the established practice of licensing exclusively for standard essential patents granted worldwide to all companies of a worldwide group of companies at the same time. Against this background, a license only for the German patents of the licensed patent portfolio would represent an unjustifiable unequal treatment compared to other licensees. This also applies to the granting of a license only to a German group company.

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FRAND conditions are linked to market dominance of SEPs

The fact that a standard essential patent (SEP) is licensed only requires FRAND licensing conditions if this patent provides market dominance (MDSEP).

Standard essential patents (SEPs) do not automatically confer market dominance. In the present case, it has been established that a market share of less than 30% for standard-compatible cell phones does not confer market dominance and therefore a FRAND license does not have to be offered in order to enforce the injunction. The patent is essential for the use of a standard concerning near field communication (NFC).

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Decision of the FCJ on auxiliary requests and the interest to take legal action in nullity proceedings

In this judgement, the FCJ (BGH) clarifies the requirements for new auxiliary requests in nullity appeal proceedings and for the infringement defendant's legitimate interest to take legal action after expiry of the patent.

Amended auxiliary requests in appeal proceedings are admissible according to this decision of the German Federal Supreme Court (Bundesgerichtshof) in 2020 if the new request differs from a request already filed in the first instance only in that some of the features that were added to the granted version have been deleted.

After the expiration of a patent an infringement action establishes a legitimate legal interest to take legal action for the infringer in a nullity suit with regard to all sub-claims referred back to the claim asserted in the infringement action and also with regard to independent claims which largely coincide in content with regard to an infringement.

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Daidalos: Discover the world of ideas!

At www.daidalos.blog we present to you the ideas that are driving society forward today – including everything from technical marvels to practical everyday inventions. And we also present the clever minds behind these ideas: innovative German companies and their inventors.

Whether fire or photography, steam engine or jet plane – the history of mankind is filled with ingenious ideas that help to improve our living conditions. To this day, we know that such innovations create value and are a driving force of our society. We would like to make this valuable influence of innovations known to a broad public and thus strengthen the image of inventors in Germany (unfortunately, Daidalos is currently only available in German).

Our CFUpdates

Valuable, secret, protected: On the handling of information under the new Trade Secrets Act

On 21 March 2019, the German Bundestag passed a new law to better protect secret information and to ensure uniform protection throughout the EU. However, in order for companies to receive comprehensive protection for their trade secrets, they must also protect them better than before under the GeschGehG, i.e. take appropriate protective measures.

CFUpdate - Intellectual property rights at trade fairs

This guide serves to help you find out more about how you can already protect the intellectual property (IP) of your company in the time leading up to a trade fair. You will also be shown what to do if during a trade fair you notice that a competitor has infringed your IP rights.

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Cohausz & Florack (C&F) is a law firm founded in 1954 comprising 27 patent attorneys and attorneys-at-law as well as about 110 employees with offices in Duesseldorf and Munich. The multidisciplinary law firm supports its clients in all matters relating to IP and unfair competition. This includes the drafting and filing, administration and licensing of extensive IP portfolios, searches for third-party IP and the associated Freedom-to-Operate expert opinions as well as cooperation agreements. C&F also represents its clients in proceedings concerning the infringement and validity of IP rights.