Orange Book Judgment
The Orange Book judgment of the Federal Court of Justice of May 6, 2009 is an important judgment on the interaction between patent law and antitrust law .
facts
As the holder of a basic patent for the Orange Book standard for the production of CD-Rs and CD-RWs , the Koninklijke Philips Electronics NV took the defendants, who sold such CDs without a license from the plaintiff, to cease and desist, to provide information and to surrender patent-infringing objects Purposes of destruction and to establish their liability for damages. The defendants objected that the plaintiff had abused the dominant position ( Section 20 (1) GWB ) that the patent gave it by demanding excessive license fees from the defendant, while granting other companies more favorable conditions. The lawsuit was nevertheless successful in all three instances.
Summary of the judgment
It is true that the Federal Court of Justice basically allowed the antitrust “compulsory license objection” to the injunction request from the patent. The licensing practice of a dominant patent holder is subject to abuse control under antitrust law. The dominant patent holder should not discriminate against a company by demanding higher license fees from them than from others for no objective reason. Otherwise he would be denied the enforcement of his patent injunction claim because this would be just as abusive as the refusal to conclude the offered license agreement.
However, this does not give the discriminated company the right to use the invention without consideration for the time being. Rather, when the patent begins to be used, it must be possible to treat it as if the patent owner had already accepted the license agreement offered to him. Corresponding license fees are to be settled regularly and paid out to the patent holder or at least deposited in his favor. Otherwise, the patent owner is not prevented from having the patent infringement prohibited by a court.
So be it in the case to be decided. The defendants never settled the license fees of 3% owed in their opinion and deposited them for the plaintiff. Under these circumstances, it could not have been decided whether their demand for higher license fees should be seen as an abuse of their dominant position.