In the last few months there have been a series of decisions of the Mannheim and Düsseldorf regional courts interpreting the requirements of the CJEU's, judgment in Huawei Technologies Co. Ltd. v ZTE Corp (C-170/13) – see below:
- "Prior to an [action for an injunction], it is for the patentee ("[P]") to alert the alleged infringer ("[D]") of the infringement complained about by designating that SEP and specifying the way it has been infringed." (judgment, para 61);
- "...after [D] has expressed willingness to conclude [a licence] on FRAND terms, ... [P] to present ... a specific, written offer...on FRAND terms...specifying, in particular, the amount of the royalty and the way in which that royalty is to be calculated." (para 63);
- "...[D] diligently to response to that offer, in accordance with recognised commercial practices in the field and in good faith...no delaying tactics" (para 64);
- "Should [D] not accept the offer..., it may rely on abusive nature of an action for [an injunction] ...only if [D] has submitted..., promptly and in writing, a specific counter-offer that corresponds to FRAND terms" (para 66);
- "...from the point at which...its counter-offer is rejected, [D] to provide appropriate security... [e.g.] by providing a bank guarantee... calculation of that security... must include, inter alia, the number of past acts... and [D] must be able to render an account of those past acts...". (para 67)
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