The Advocate General Wathelet pleads before the Court of Justice of the European Union in the FRAND case

On November 20, 2014, the Advocate General has presented his pleading in a case which was referred to the Court of Justice of the European Union by the District Court of Düsseldorf. The question was what the holder of a standard essential patent has to do before asking for an injunction against the infringer. It is clear that the patent holder has to offer a license under fair, reasonable and non-discriminatory terms (FRAND). As to the details, this offer must be in writing and contain all the terms normally included in a license in the sector in question, including the precise amount of the royalty and the way in which that amount is calculated. The infringer must respond in a diligent and serious manner. According to the Advocate General, the infringer cannot be regarded as dilatory or as not serious if a request is being made that FRAND terms be fixed either by a court or by an arbitration tribunal.