Düsseldorf Regional Court refers Nokia vs. Daimler licensing dispute to CJEU

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As anticipated, the Düsseldorf Regional Court, in its decision Nokia ./. Daimler (4c O 17/19) issued on November 26, 2020, referred several questions to the European Court of Justice regarding the licensing of standard essential patents.

The professional community has been waiting long and eagerly for this new opportunity for the ECJ to comment on current licensing practice and to provide guidance for current and future litigation regarding FRAND licensing of SEPs (see our blog Nokia vs. Daimler - FRAND defence does not apply).

The total of ten questions asked revolve around a first set of questions to what extent there is an obligation to give priority to supplier licensing, especially if this is in line with normal practice in the industry in question? In a second set of questions, clarification of the requirements from the Huawei ./. ZTE decision (C 170/13) is requested.

According to well-informed sources, the referral questions were even agreed between the judges of both the Regional Court and the Higher Regional Court. Although the referral was expected, as there have been numerous diverging decisions on these issues recently, the extent of the questions is surprising, as the questions raised go far beyond the expected complex of questions on supply chain licensing.

See the full press release (in German) from the Düsseldorf Regional Court.


UPDATE AS OF 1 JUNE 2021:

Daimler and Nokia have just settled their litigation on standard essential patents on communication technology globally, thereby terminating their longstanding legal FRAND battle. It is yet unclear if this also means an end of the related referral questions pending before the CJEU. Answers to them are awaited by the professional community long and eagerly.

According to sources, Continental AG is said to continue its battle against Nokia regardless. So possibly, a further opportunity to receive guidance on the referral topics from the CJEU may arise in the not too distant future.
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Christoph Moeller

Christoph is a Partner and Patent Attorney at Mewburn Ellis in our Munich office. Christoph leads our EU Design practice and is regularly involved in European and national design registration and design litigation matters. He advises clients on all aspects of IP strategy and portfolio management, including employee inventions in Germany, and also handles patent drafting and prosecution before the EPO and the German Patent and Trade Mark Office (DPMA), particularly in the fields of electrical engineering and ICT/CII.

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