CJEU and German courts shape FRAND

As expected the Düsseldorf Regional Court today submitted certain questions in the connected cars case Nokia vs. Daimler to the Court of Justice of the European Union (CJEU) for clarification.

In this case (case ID: 4c O 17/19)  the main question is as to whether an SEP holder may decide in compliance with FRAND, who in in the supply chain may be entitled to a license of SEPs. This question has now been submitted by the Düsseldorf Regional Court to the CJEU for decision. After the prominent and well respected FRAND decision of the CJEU in the case of Huawei vs. ZTE (case ID: C-170/13) this is the second time the CJEU will make a decision at the link in between patent law and competition law. Also the Huawei vs. ZTE case was based on a submission of the Düsseldorf Regional Court.

By these proceedings the European venue continues to shape the jurisdiction in the field of SEPs with global effect. The CJEU is one of the most respected courts in the world in the field of competition law. In far more than 1,000 SEP cases handled by the German patent infringement courts a reasonable jurisdiction has been build and, as exemplified by the present proceedings, is getting more and more refined.

This is important news for licensors and licensees at the same time. SEPs are a core area in the patent world in view of the continuously growing need of standardized technology. The process of standardizing technologies is shaping the largest collaborative developments ever seen. Mobile communication is an eminent example for such collaboration. Finding a fair solution for the protagonists contributing to these developments on one side and the ones making the products based on such developments on the other side is key to enable this process.

Guidance for such fair solutions is provided by the European legal system, presently the CJEU and the German patent infringement courts.