The District Court Düsseldorf decides on “portfolio-splitting” of standard essential patents (SEP)

In three decisions ((4b O 120/14), (4b O 122/14), (4b O 123/14)) the District Court Düsseldorf had to decide the question whether it is acceptable under anti-trust aspects that the owner of an extensive portfolio of standard essential patents splits up this portfolio, which means, transfers a part of the patents to a third party aiming to generate this way higher license fees. The District Court Düsseldorf allowed it in the present cases. The contract of transfer of a part of the patent portfolio provided that the transferee acknowledges the FRAND-obligations of the transferring party and submits within due term an own FRAND-declaration vis-à-vis the standardization organization. The principle of “non-discrimination” only requires that the patentee treats the licensees which are in comparable position equally. The principle of non-discrimination does, however, not require to offer in the length of time, to all licensees exactly the same license conditions.