The European Commission expresses its view on standard essential patents

The European Commission has sent to companies "objections on potential misuse of mobile phone standard essential patents”. In principle an infringer of standard essential patents can defend himself with the argument that he is willing to enter into a license agreement under "Fair Reasonable and Non-Discriminatory (FRAND)" conditions. However, regarding the issue under which conditions a potential licensee is to be considered as "willing" to take a license there are different opinions between the German Federal Supreme Court and the European Commission. According to the European Commission it is sufficient if the potential licensee declares to be willing to pay a license fee which has been considered "reasonable" by a German court. Moreover, even if the potential licensee raises arguments regarding non-infringement and/or invalidity of the standard essential patent he can rely on his willingness to take a license. Regarding this issue the District Court Düsseldorf has recently referred questions to the European Court of Justice (confer the homepage news of March 2013) and guidelines of said court are to be expected.