The enforcement of standard essential patents in Germany – a stocktaking

Intellectual Property Update


In July 2015, the European Court of Justice (CJEU) issued a long-awaited judgment answering questions as to the requirements an owner of a standard essential patent (SEP) is able to enforce its SEP without a breach of European Antitrust Law. As the owner of an SEP basically has the obligation to license its SEP under fair, reasonable and nondiscriminatory (FRAND) conditions, it is not in any way possible for the owner to enforce its SEP without taking any prior effort in entering into a FRAND license agreement. Given that this landmark ruling deviated substantially from the German courts' previous case law and that it still left a number of issues unaddressed, it was unclear at the time how the national courts were going to implement the CJEU's judgment.

As the following explanations demonstrate, there exists, in some points, a considerable level of discrepancy in the case law of the different courts. Consequently, although the decision of the CJEU aimed to outline and harmonize the requirements which need to be fulfilled by both parties, open questions remained which were answered in a different manner by the national courts.

In the following, we will set out FAQs aimed to answer the typical questions which arise when a company is confronted with infringement allegations in the context of SEPs. These FAQ shall only be a very first guidance on how to react when receiving an infringement allegation from an SEP owner, but can certainly not substitute a detailed analysis of the circumstances in the specific case.