Recent case law from the Munich patent courts has further refined the requirements for raising a competition law-based FRAND defence against injunctive relief based on standard-essential patents. Several decisions of the Regional Court of Munich I in 2025 and 2026 address in particular the assessment of an implementer\u2019s willingness to take a license, the role of partial payments and security, and the determination of a permissible FRAND licensing range on the basis of comparable license agreements.<\/p>\n
In its judgment of 8 January 2026 (Regional Court of Munich I, case no. 7 O 5007\/25), the court emphasized that the assessment of willingness to license depends not only on formal declarations but also on the implementer\u2019s concrete conduct in negotiations. In particular, the court considered it highly relevant whether the implementer pays at least an undisputed portion of the licence fee or provides adequate security, as such conduct may demonstrate that the implementer is not engaging in hold-out behaviour.<\/p>\n
In another judgment of 5 February 2026 (Regional Court of Munich I, case no. 7 O 7655\/25), the same chamber further elaborated on its approach to determining a FRAND royalty corridor based on comparable licence agreements. According to the court, comparable agreements may serve as a benchmark for identifying a permissible range of licence rates within which an offer will generally be considered FRAND-compliant.<\/p>\n
Similarly, in its decision of 22 January 2026 (Regional Court of Munich I, case no. 7 O 4102\/25) concerning patents allegedly essential to the H.265\/HEVC video coding standard, the court rejected a competition law compulsory licence defence and held that the defendant had not demonstrated conduct sufficient to establish a successful FRAND defence.<\/p>\n
Earlier, the Regional Court of Munich I had also addressed the international dimension of SEP disputes. In its judgment of 26 November 2025 (Regional Court of Munich I, case no. 21 O 12112\/25), the court held that the competition law assessment of FRAND obligations with respect to German patents must, in principle, be carried out by German courts. It therefore considered attempts to obtain a court-ordered \u201cinterim licence\u201d from a foreign court affecting German patents to be incompatible with the territorial nature of patent rights.<\/p>\n
Taken together, these decisions illustrate how German first-instance courts are increasingly translating the framework established by the Court of Justice of the European Union in Huawei v ZTE<\/em> into concrete procedural and economic criteria. Against this background, the recent judgment of the German Federal Court of Justice is of particular significance.<\/p>\n On 27 January 2026 (KZR 10\/25), the Bundesgerichtshof dismissed HMD Global Oy\u2019s appeal in the dispute with VoiceAge EVS GmbH. The judgment confirms the decisions of the Munich lower courts and further refines the standards governing FRAND defences against injunctive relief based on standard-essential patents.<\/p>\n The legal framework remains Article 102 TFEU and the principles developed by the Court of Justice of the European Union in Huawei v ZTE.<\/p>\n VoiceAge asserted claims based on a European patent declared essential to the EVS telecommunications standard. HMD argued that enforcement of the injunction would constitute an abuse of dominance, as it had been willing to take a licence on FRAND terms.<\/p>\n Both the Regional Court of Munich I and the Higher Regional Court of Munich rejected this defence, finding that HMD had not demonstrated sufficiently consistent willingness. The appeal raised, in particular, the question whether the Huawei framework must be applied in a strict chronological sequence and how security is to be assessed.<\/p>\n The FCJ confirms that the Huawei obligations do not establish a rigid step-by-step sequence. Courts must assess the entire course of negotiations. An initial declaration of willingness is not decisive if subsequent conduct undermines its credibility.<\/p>\n Delays, inconsistent positions or tactical reservations may call into question the seriousness of the implementer\u2019s engagement. The Court thus endorses a contextual evaluation focusing on coherence and continuity.<\/p>\n According to the judgment, willingness must be substantive rather than merely declaratory. It requires a clear and unconditional expression of intent to take a licence, combined with timely and reasoned engagement with the SEP holder\u2019s offer and meaningful counter-offers.<\/p>\n The implementer bears the burden of demonstrating such conduct. Remaining ambiguities may operate to its detriment.<\/p>\n The FCJ attaches particular importance to the provision of adequate security for ongoing use. In the case at hand, the security offered by HMD did not even fully correspond to its own counter-offer. On that basis alone, the Court rejected the FRAND defence without needing to examine in detail whether the claimant\u2019s offer complied with FRAND.<\/p>\n Security therefore functions as an independent indicator of seriousness in negotiations.<\/p>\n The Court declined to refer further questions to the Court of Justice of the European Union, considering the legal framework established in Huawei v ZTE sufficiently clear.<\/p>\n The decision confirms that FRAND defences in Germany remain demanding. Companies should ensure that willingness to license is clearly expressed and consistently reflected in their conduct. Negotiation correspondence is likely to be scrutinised in detail.<\/p>\n In addition, security arrangements should be considered at an early stage. Inadequate security may undermine the defence irrespective of the substantive assessment of licence terms.<\/p>\n In \u201cFRAND Objection III\u201d, the FCJ continues its conduct-focused approach in SEP cases and clarifies the substantive requirements for willingness and security. What ultimately matters is credible and economically supported readiness to conclude a licence agreement, rather than formal compliance with individual procedural steps.<\/p>\n <\/p>","protected":false},"excerpt":{"rendered":" Recent Case Law of the German District Courts Recent case law from the Munich patent courts has further refined the requirements for raising a competition law-based FRAND defence against injunctive relief based on standard-essential patents. Several decisions of the Regional…<\/p>","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[63],"tags":[],"legal_areas":[214,218],"class_list":["post-44986","post","type-post","status-publish","format-standard","hentry","category-ip-update-en","legal_areas-licensing","legal_areas-patent-litigation"],"acf":[],"yoast_head":"\nFCJ \u201cFRAND Objection III\u201d<\/h2>\n
Background and procedural history<\/h3>\n
Overall assessment of negotiation conduct<\/h3>\n
Substantive requirements for willingness<\/h3>\n
The role of security<\/h3>\n
No referral to Luxembourg<\/h3>\n
Practical implications<\/h3>\n
Conclusion<\/h3>\n