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NL – Philips v. Wiko / FRAND / Appeal

05 Jul 2019

Koninklijke Philips N.V. v. Wiko SAS, Court of Appeal The Hague, The Netherlands, 2 juli 2019, Case no. 200.219.487/01

In an interim ruling the Court of Appeal earlier ruled that the claims according to the second auxiliary request are deemed to be valid and infringed by Wiko (see here). Wiko’s FRAND defence is the topic of the current ruling.

The Landgericht Manheim earlier this year accepted Wiko’s FRAND defence. Wiko therefore requested that the proceedings be stayed based on Article 29 and/or 30 EEX Regulation (new). The Court of Appeal however does not see the current proceedings as proceedings involving the same cause of action and between the same parties nor as related actions as the injunction and recalls are related to different territories and are based on separate national patent rights. In the Netherlands the national parts of EP 511, EP 659 and EP 525. In the German proceedings the German part of EP1062744.

The Court of Appeal subsequently rejects Wiko’s FRAND defence. Philips does not abuse it’s alleged dominance. Wiko has not been a willing licensee prior to the current proceedings. Philips did not need to specify why its licensing proposal was FRAND. Wiko’s counteroffer was made only after commencement of the current proceedings and thus can not change the fact that Philips could rightfully commence these proceedings against unwilling licensee Wiko.

A reasonable counteroffer made after commencement of the proceedings can only lead to an obligation to negotiate in good faith in parallel to the proceedings, but it can not result in the fact that already instigated proceedings are to be seen as an abuse of dominance in hindsight.

Philips is entitled to an injunction as Wiko’s offer to post a guarantee was largely based on its non FRAND counteroffer.

A copy of the decision (in Dutch) can be read here.