Compulsory Licensing in Germany
in: Reto Hilty and Kung-Chung Liu (eds), "Compulsory Licensing: Practical Experiences and Ways Forward" (MPI Studies on Intellectual Property and Competition Law, Vol. 22); Springer, 2015
22 Pages Posted: 4 Oct 2014 Last revised: 24 Sep 2018
Date Written: May 25, 2013
In the last 20 years, German courts have developed a sophisticated approach to compulsory licensing of patents. Compulsory licences under competition law are of particularly high relevance. In short, German competition law obliges the holder of a patent, which is essential in a standard to grant a licence on terms that are fair, reasonable, and non-discriminatory (FRAND). Users of such patents can also raise a so-called competition law defence against imminent injunction orders.
The resonance of the German debate in international scholarly literature has remained relatively low, probably because of the language barrier. Most works merely scratch the surface of the particularly complex issues. This paper provides an in-depth analysis of the German legal background and the consequences in practice. It suggests a streamlined, simplified approach to competition-law-based defences.
Keywords: Compulsory Licensing; Orange Book Standard; Competition Law Defences; FRAND; Standards
JEL Classification: D45, K21, I12, O31, O34
Suggested Citation: Suggested Citation