HMD evaluates next steps after disappointing Federal Court of Justice ruling

At the start of Tuesday’s oral hearing in the SEP dispute between VoiceAge and HMD, presiding judge Sabine Rotloff made it clear that HMD’s appeal had little chance of success. For the Antitrust Senate judges, the case appeared straightforward. They also dismissed the possibility of a CJEU referral, despite strong calls from both the EU Commission and HMD.

The hearing continued for two more hours. After lunch, the Antitrust Senate announced it would deliver its judgment at 4pm — sooner than most observers had anticipated.

No HMD party representatives attended the announcement of the ruling. The disappointment was already evident on the faces of Federal Court attorney Rainer Hall and lawyers from Hoyng ROKH Monegier and Hogan Lovells upon leaving the hearing.

As expected, the Federal Court judges upheld Munich Higher Regional Court’s injunction against HMD. The court largely maintained its FRAND case law from Sisvel vs Haier I and II.

Bitter letdown

HMD has now issued a statement that reveals the depth of its disappointment.

“HMD notes with concern that the German Federal Court of Justice dismissed HMD’s appeal, and declined to refer key questions concerning patent holders’ obligations to grant licences on FRAND terms to the European Court of Justice,” the press release states.

“The European Commission expressly urged referral of these questions, consistent with HMD’s position that the ECJ, as the competent court to interpret EU law, should provide authoritative guidance to ensure uniform application of EU law across the European Union,” it says.

The statement continues, “HMD also disagrees with the FCJ’s statement that it showed ‘no serious interest’ in obtaining a FRAND licence. This assessment does not reflect HMD’s documented continuing good-faith negotiation efforts. While HMD remains willing to secure a FRAND licence from VoiceAgeEVS, HMD continues to advocate for a balanced FRAND framework that fosters innovation, preserves competition, and ensures consumer choice and fair market access for all industry participants in Germany, the European Union and globally.”

Contitutional complaint possible

HMD also states it will carefully evaluate next steps once it reviews the detailed judgment grounds, which the court has not yet published.

Under German law, HMD’s only remaining option would likely be an appeal to the German Constitutional Court. The Finnish company could, for example, claim it was denied the right to be heard.

The Constitutional Court has dealt with several patent cases in recent years. These include complaints against EPO Board of Appeal jurisdiction practices, the UPC Agreement and the Federal Court of Justice’s FRAND decision in Sisvel vs Haier.

In 2020, Chinese mobile phone manufacturer Haier appealed to the Constitutional Court over the Federal Court of Justice decisions in Sisvel Haier I and II (case ID: 1 BvR 1843/20). The company wants the Constitutional Court to review whether the Federal Court’s decision aligns with European law.

Previously, the Federal Court’s Antitrust Senate had ruled Haier was an unwilling licensee because the company had not submitted a FRAND offer quickly or concretely enough.

JUVE Patent just learned from lawyers involved that the Constitutional Court has recently rejected Haier’s complaints.