Empirical Analysis of the German Caselaw on SEP Injunctions after Huawei v ZTE

Abstract

This paper presents the results of a comprehensive empirical analysis of the German caselaw on SEP injunctions. We coded 71 Regional Court and 20 Higher Regional Court decisions in which a court adjudicated a FRAND defense to answer the following questions: How successful are accused infringers’ FRAND defenses in German courts; and how prevalent are different reasons for SEP holders or implementers to prevail? How do the duration of negotiations and the nature of the proposed licensing offer (pool or bilateral license, worldwide or national license) correlate with the outcome of litigation? How often do injunction awards in SEP litigation conflict with parallel validity proceedings? Our data analysis reveals that defendants often prevailed on the merits of their FRAND defense. Nevertheless, most of the recent disputes resulted in the grant of an injunction. We also corroborate concerns regarding bifurcation between infringement and validity proceedings; and highlight the relative scarcity of court reviews of the substantive FRAND compliance of a SEP owner’s licensing offer.

Keywords: Standard-Essential Patents; Patent Litigation; Injunctions

JEL Classification: K41; O34