The District Court of Dusseldorf refers a case to the European Court of Justice

In a decision of March 21, 2013 (4b O 104/12), the District Court of Dusseldorf has referred several questions relating to standard essential patents to the European Court of Justice. The background is that the German Federal Supreme Court has defined in a landmark decision (KZR 39/6) “Orange – Book – Standard” rather harsh pre-conditions, under which an infringer of a standard relevant patent is entitled to a license and can defend himself accordingly. Basically, the infringer has to offer to enter into a license agreement, the refusal of which offer by the patentee would be discriminatory. Furthermore, the infringer has to render an accounting and to pay for past infringement in order to have this defense argument. In a press release of December 21, 2012, the European Commission arguably has defined less strict pre-conditions of this defense, namely that the competitor declares to be willing to negotiate a license agreement. Now the District Court of Dusseldorf has asked the European Court of Justice for a clarification.