Huawei v. ZTE, District Court Dusseldorf, Germany, 21 March 2013, case no. 4b O 104/12Huawei has sued ZTE for infringement of a patent related to the LTE-standard, which Huawei has declared as being essential to the LTE standard towards the European Telecommunication Standards Institute (ETSI). ZTE has distributed base stations for mobile communication using LTE related software.
In 2009, the German Federal Supreme Court ruled out in “Orange Book Standard” that the enforcement of a cease and desist claim based on standard essential patents may be abusing antitrust regulations in case the defendant has offered taking a license under specific conditions and has complied with the license provisions. Subsequently, German instance courts had often to deal with the compulsory license defence in standard essential patent cases. In particular, there was no established case law whether the license offer can be made under the condition that the patent has in fact been used by the defendant and that the patent is considered to be valid.
The District Court Dusseldorf now decided to request the CJEU to clarify specific questions related to the compulsory license defense in standard essential patent cases. The court stated that there are conflicting legal opinions on these questions and referred to the “Orange Book Standard” decision and the press release of the European Commission of December 21, 2012, according to which the enforcement of a cease and desist claim based on standard essential patents was considered by the European Commission as abusing antitrust regulations, if the defendant was open to negotiate taking a license.
It is to be expected that the statement of the CJEU would clarify the conformity of the “Orange Book Standard”-based German case law with European antitrust regulations and would also conclude many open aspects of the conflicting arguments.
Read the judgement (in German)
here.
Head note: Thomas Schachl
DE - Huawei v. ZTE, District Court Dusseldorf, Germany, March 21, 2013, case no. 4b O 104/12
Huawei
has sued ZTE for infringement of a patent related to the LTE-standard,
which Huawei has declared as being essential to the LTE standard towards
the European Telecommunication Standards Institute (ETSI). ZTE has
distributed base stations for mobile communication using LTE related
software.
In 2009, the
German Federal Supreme Court ruled out in “Orange Book Standard” that
the enforcement of a cease and desist claim based on standard essential
patents may be abusing antitrust regulations in case the defendant has
offered taking a license under specific conditions and has complied with
the license provisions. Subsequently, German instance courts had often
to deal with the compulsory license defence in standard essential patent
cases. In particular, there was no established case law whether the
license offer can be made under the condition that the patent has in
fact been used by the defendant and that the patent is considered to be
valid.
The District
Court Dusseldorf now decided to request the EUECJ to clarify specific
questions related to the compulsory license defense in standard
essential patent cases. The court stated that there are conflicting
legal opinions on these questions and referred to the “Orange Book
Standard” decision and the press release of the European Commission of
December 21, 2012, according to which the enforcement of a cease and
desist claim based on standard essential patents was considered by the
European Commission as abusing antitrust regulations, if the defendant
was open to negotiate taking a license.
It
is to be expected that the statement of the EUECJ would clarify the
conformity of the “Orange Book Standard”-based German case law with
European antitrust regulations and would also conclude many open aspects
of the conflicting arguments.
Read the judgement (in German): http://www.justiz.nrw.de/nrwe/lgs/duesseldorf/lg_duesseldorf/j2013/4b_O_104_12_Beschluss_20130321.html
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