The FRAND Defense In European Litigation Involving Standard-Essential Patents
Dr. Christof Karl, Bardehle Pagenberg, Munich
Standard-essential patents have been playing a central role in recent patent disputes, in particular in litigations involving manufacturers in the fields of telecommunications or electronics. They are frequently used with an aim to force the manufacturers into a settlement at terms favorable to the patent owner. The purpose of the FRAND defense is to prevent such an outcome, providing the defendant with the possibility to avoid an injunction and to limit the patent owner’s claims to the payment of royalties under a license at fair, reasonable and non-discriminatory terms.
The presentation will discuss the approaches to the FRAND defense adopted by courts of various jurisdictions in Europe. The case law at hand, which seems to raise more questions than it answers, will be analyzed. Finally, the presentation will outline the difficulties for the parties in determining reasonable royalty rates, in particular for products which potentially make use of hundreds of standard-essential patents.