Court of Justice, judgment dated November 26, 2020 – docket no. KZR 35/17 / FRAND

Following the decision FRAND-Einwand of May 5, 2020, docket no. KZR 36/17, the German Federal Court of Justice had to deal with the dispute between Sisvel and Haier and decide on Haier’s FRAND defense for a second time. With its new decision FRAND-Einwand II (judgment dated November 26, 2020 – KZR 35/17), the German Federal Court of Justice did not only confirm its decision FRAND-Einwand; it also seized the opportunity to provide a landmark decision, including a detailed and extensive reasoning, regarding the parties’ scheme of obligations based on the decision of the Court of Justice of the EU (CJEU) in the case “ZTE vs. Huawei” (C-170/13 , hereinafter referred to as “CJEU decision”).

The decision by the German Federal Court of Justice provides practitioners with legal certainty over numerous contentious issues in the form of guidelines without taking the necessary leeway for the required consideration of each individual case. The decision also is a further significant step towards a harmonization of European case law, particularly with regard to the United Kingdom and the Netherlands. Thus, there is justified hope that the decision will make an essential contribution to a harmonization of the requirements for the FRAND defense, not only with respect to German courts of lower instances but also with respect to other European courts.

The full summary can be read here.

Headnote and summary provided by: Tilman Müller-Stoy, Jan Bösing and Stefan Lieck, Bardehle Pagenberg