German FRAND Decision May Shape Global SEP Landscape

In July, the German Federal Court of Justice, Germany's highest civil court, issued its written opinion in Sisvel International SA v. Haier Deutschland GmbH.¹

This is the first German high court opinion on standard‑essential‑patent licensing since the Court of Justice of the European Union issued its landmark Huawei v. ZTE decision in 2015².

Following Huawei Technologies Co. Ltd. v. ZTE Corp., the German high court provided further guidance on SEP licensing, and, in particular, what an SEP implementer must do to raise a defense based on the SEP holder's fair, reasonable and nondiscriminatory commitments.

These FRAND defenses typically involve third-party beneficiary breach of contract claims or claims based on antitrust or unfair competition theories. Those asserting a FRAND defense often argue that, at a minimum, the alleged violation precludes an injunction. But some may also argue the violation is so severe that the asserted patents should be declared