In a press release in December 2012, the European Commission gave notice that the enforcement of standard-essential patents may constitute an abuse of a dominant market position if the challenged infringer is willing to take out a licence under fair, reasonable and non-discriminatory (FRAND) conditions.

In the specific case in question, Samsung challenged Apple in respect of various patents that are required in accordance with the UMTS mobile communications standard and therefore must be used by all companies. Apple had "shown itself to be willing to negotiate". Nevertheless, Samsung sought enforcement of the injunctive relief by way of interim injunctions. This is where the Commission now sees the possibility of an abuse of a dominant market position, as indicated in the aforementioned press release.

This opinion of the EU Commission thus differs substantially from the previous German case law of the Federal Court of Justice (BGH) in the "Orange Book" decision.

Here, the BGH set out extremely strict prerequisites for the permissibility of the antitrust law defence, which go far beyond the EU Commission's position indicated in the press release. The BGH required the infringer to submit a definite licence proposal, to provide information, to calculate and pay (or deposit) the licence fee and not to raise a challenge against the intellectual property right (nullity proceedings).

On the contrary, the Commission appears to deem it sufficient if the infringer is seriously willing to negotiate a licence under "FRAND" conditions. If this position is confirmed, the German case law on the permissibility of the antitrust law defence in the case of standard-essential patents will undergo a dramatic change and weakening. The BGH conditions have in fact frequently been criticised as being too strict and have therefore not given rise to any successful objections in practice.

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