Dusseldorf: Implementer must dive into the pool, not just tip a toe in the bilateral water

The FRAND news has been awash with reports of the Nokia/Daimler settlement of late, and its ramifications for the wider space. However, amongst that coverage there is also news of a German decision concerning the AAC standard (an audio codec that is a de facto standard given the effective requirement to support it).

I found the report interesting for two reasons. First, it is a good example of the Dusseldorf Court analysing the position on willingness as regards a FRAND defence following the recent judgments from the Federal Court of Justice. Second, and perhaps of more interest, is how it treats an offer of a licence to a patent pool (in this case operated by Via). It isn't surprising that an offer of a pool licence may be FRAND. However, what may not have been expected was the finding that there was no obligation to offer a bilateral licence as an alternative, even where the implementer asks for one, unless there was a legitimate reason for the implementer to demand a bilateral licence. 

Needless to say (subject to appeal), this decision that a pool licence may be insisted on by a pool member is likely to enhance the position of patent pools in licensing negotiations.