(2026). Developing Jurisprudence by Taking Tiny Steps – The FRAND Defence III Decision of the German Federal Court of Justice IIC - International Review of Intellectual Property and Competition Law 2026, forthcoming.
The most recent FRAND decision of the German Federal Court of Justice (FRAND Defence III) comes at a time when the SEP litigation game is becoming more complex in the European multiverse of German and British courts and the UPC. It also comes after the proposed EU SEP Regulation has been (at least) shelved. The highest German court continues to develop its jurisprudence within the framework provided by the CJEU but in small steps. In this opinion, I take a look at the most important aspects of the decision but I also show the limitation that a court faces in setting a framework based on the facts of a specific case. In addition, I highlight open questions that in my opinion would actually benefit from an updated perspective of the CJEU.
