After the Unwired Planet v. Huawei case settled recently, Germany now has its first decision on FRAND rules from the Federal Court of Justice in recent years. The court ruled in favour of Sisvel in its litigation against Haier, finding that Haier acted as an unwilling licensee in FRAND negotiations.
After the second instance court had found that Sisvel's licence offer was not FRAND because Sisvel had offered different terms to another licensee, the Federal Court of Justice came to the opposite conclusion. Notably, the court requires the implementer to do more than declare a willingness to license, but to convey that the implementer is willing to license at FRAND terms, whatever such terms ultimately turn out to be. In the hearing, the judges made reference to the UK case in Unwired Planet v. Huawei. Apparently, Haier did not show the necessary willingness according to the court's standard.
While there is now a first judgement from the Federal Court of Justice, the issues addressed in the case will likely cover only a small portion of the uncertainties around FRAND rules. In particular, one should not expect a statement from the court on what a FRAND licence is. The written decision, to be published in a couple of weeks, will bring more clarity on the actual implications of the judgement. It seems, however, already fair to say that the decision will raise the bar for the FRAND defence in SEP litigation in Germany. We will have to stay tuned for the next decision...
the implementer must be willing to license at FRAND terms, whatever such terms ultimately turn out to be.