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,
"...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"
"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
"...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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