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DE – Unreasonable counter-offer in FRAND negotiations

20 Jul 2021

Mannheim District Court, judgment dated March 2, 2021 – docket no. 2 O 131/19

With its judgment dated March 2, 2021, docket no. 2 O 131/19, the Mannheim District Court applies decisions “FRAND-Einwand”
(judgment dated May 5, 2020, KZR 36/17, GRUR 2020, 961) and “FRAND-Einwand II” (judgment dated November 26, 2020, KZR 35/17, GRUR 2021, 585) of the German Federal Court of Justice (FCJ) for the first time as far as apparent.

Based on the criteria laid down by the FCJ, the Mannheim District Court concludes that the Defendants in the present case were not willing to take a license, while the Plaintiff fulfilled the obligations it had in the negotiations. The Mannheim District Court bases this conclusion, inter alia, on the fact that the Defendants demanded a clause in their counter-offer under which products which include chipsets by a certain supplier and with regard to which exhaustion may, thus, potentially have occurred, are excluded from the obligation to pay license fees.

The entire summary can be read here.

Headnote and summary: Jan Bösing and Tilman Müller-Stoy, Bardehle Pagenberg