{"id":50922,"date":"2026-08-28T09:57:03","date_gmt":"2026-08-28T07:57:03","guid":{"rendered":"https:\/\/www.boehmert.de\/?p=50922"},"modified":"2026-08-31T10:32:26","modified_gmt":"2026-08-31T08:32:26","slug":"new-frand-guidelines-of-the-7th-civil-chamber-of-the-munich-1-regional-court","status":"publish","type":"post","link":"https:\/\/www.boehmert.de\/en\/new-frand-guidelines-of-the-7th-civil-chamber-of-the-munich-1-regional-court\/","title":{"rendered":"New FRAND Guidelines of the 7th Civil Chamber of the Munich I Regional Court: More Structure, More Economics, No Safe Harbor"},"content":{"rendered":"

The Munich patent chamber that decides the bulk of German SEP cases has set out, over 67 pages, how it assesses FRAND. Anyone pleading in Munich now knows which figures the chamber expects and which lines of defense it will not accept.<\/h2>\n

Background<\/h3>\n

The 7th Civil Chamber of the Munich I Regional Court, chaired by Dr. Oliver Sch\u00f6n and sitting with Dr. Florian Schweyer and Katalin T\u00f6zs\u00e9r, issued new FRAND Guidelines dated 13 August 2026. They consolidate the chamber’s approach from its recent SEP decisions and add points so far discussed only in unpublished proceedings. The presiding judge explains the document by reference to a “clear need for a systematic and clearly structured presentation in practice” and to the aim of deciding cases within one year of filing.<\/p>\n

The Guidelines supersede the orientation previously provided by the joint February 2020 notice of the 7th and 21st Civil Chambers on the handling of the competition-law compulsory-license defense under Huawei v ZTE, which was still closely tailored to the implementer working through the Huawei steps. The 21st Civil Chamber has been informed of the new guidance; given the level of detail, joint guidance was evidently not feasible. The Guidelines are not binding law and expressly reflect the position of the 7th Civil Chamber alone. Their practical weight follows from the number of cases pending there \u2014 some 40 to 50 new SEP cases a year \u2014 and from the announcement that the chamber will more often decide on the appropriateness of the claimant’s offer itself.<\/p>\n

Procedure: “FRAND FIRST” Instead of a Safe Harbor<\/h3>\n

The most important procedural innovation is the option of a “FRAND FIRST” hearing: either party may request an early hearing devoted exclusively to FRAND issues, with submissions confined to a short brief of no more than 25 pages plus annexes. The chamber thereby continues the separation of infringement and FRAND observed since 2022 without abandoning the Munich procedural framework.<\/p>\n

A genuine safe harbor is expressly rejected: a mechanism shielding an implementer from an injunction where it submits to binding arbitration would, in the chamber’s view, be incompatible with the patent holder’s interests and open to abuse. Providing security alone likewise does not prevent an injunction. The chamber sees no fundamental change in the establishment of the UPC Patent Mediation and Arbitration Centre in June 2026: mediation has been available at the Munich I Regional Court for more than 20 years and arbitration before bodies such as the ICC has long been available; all that has been added is a further option.<\/p>\n

Willingness to License: External and Internal<\/h3>\n

The chamber distinguishes external from internal willingness. External willingness is assessed in a formalized way: the implementer must pay the undisputed portion of the royalty \u2014 measured by its own final offer \u2014 and, in defined circumstances, provide additional security. Under the chamber’s decisions, that includes, where the offers are far apart, security in the amount of the royalty falling due for one year of the license period under the claimant’s offer; and where the implementer is pursuing rate-setting proceedings abroad and that court has already proposed an amount, security in that amount. Only once external willingness is established does the chamber examine whether the SEP holder’s offer falls within the FRAND range; an implementer that nevertheless declines such an offer lacks internal willingness.<\/p>\n

Determining the Range: Comparable Licenses First<\/h3>\n

The primary tool for determining the range is comparable licenses of the same licensor covering materially the same portfolio. The top-down approach serves as a cross-check in principle, and as the basis for an initial rate determination only where there is no established licensing practice or no suitable comparable agreement.<\/p>\n

On comparability, the Guidelines provide in essence:<\/p>\n