Following Sisvel v Haier I back in Spring 2020, the German Federal Court of Justice has now released a second instalment for our delectation. Whilst the judgment addresses a number of issues and bears detailed scrutiny (see the linked article), it is tempting to use the imprecise summary "German FCJ brings 'German FRAND' into line with UK's Unwired case law".
The emphasis in Sisvel II is on being conduct-oriented rather than content-oriented [in the words of the UK Supreme Court, "...the FRAND obligation in the [ETSI] IPR Policy extends to the fairness of the process"]. Further, again aligning with the UK Supreme Court in Unwired, the FCJ held that the Huawei v ZTE framework presents a safe harbour for a SEP owner. It is clear that hold out was an issue that concerned the Court, with the suggestion being that the longer an implementer waits, the more effort / proactivity it needs to show to evidence its willingness (or that it is FRANDly?).
Finally, it is worth tritely observing that given the FCJ's decision that an abuse of a dominant position is only committed by a SEP owner's refusal to licence (categorically or implied from insisting on unreasonable terms) means that it is highly unlikely to be relevant in practice. That said, it will be interesting to see what happens when competing FRAND determinations from multiple jurisdictions come head-to-head: is it a refusal to licence if you are prepared to offer the terms set by one court, but not by another?
In addition to this detailed analysis, I would also commend this article from @IAM_Alerts on the topic.
Abuse is only committed by (i) a categorical refusal to license or by (ii) unreasonable conditions for the requested access, which the SEP-owner is not willing to budge from even at the end of negotiations, as this would manifest a refusal to offer the licensing agreement at FRAND conditions the implementer is entitled to.
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