| Popis: |
In August 2021, the ‘Second Act for the Modernization of Patent Law’ (Zweites Patentrechtsmoderni-sierungsgesetz) introduced an explicit proportionality defense into Sec. 139(1) German Patent Act. Unlike the competition law or national contract law prong of the Huawei defense in FRAND cases, the proportionality defense thus derives from the GPA itself. The new provision has already generated much debate and some initial case law. According to public knowledge, however, it has not yet been raised in a German FRAND case, although it seems inevitable that this will happen. Hence, this article offers to market participants and the judiciary a proposed analytical framework for considering such a proportionality defense in German FRAND cases. For this purpose, it undertakes a comparative assessment of U.S. patent injunction law. As to German law, the focus is on whether the proportionality defense and the FRAND license defense can be raised in parallel, whether FRAND royalties are a suitable basis for calculating an appropriate financial compensation under Sec. 139(1)(4) and how a court should assess whether the impact of an injunction in a FRAND case triggers the proportionality defense. |
