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Editor-in-Chief, Anatole Krattiger
The Determination of FRAND Royalties in Court Procedures in Germany
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Peter K. Hess, Partner at BARDEHLE PAGENBERG (Patent- und Rechtsanwälte)
Run Time: 23 minutes
LES International: Licensing in Emerging Economies, Makati City, Philippines
Date: 7-10 June 2009
Hess reviews the issues related to FRAND royalties in the absence of an agreement by detailing a recent case of the Appeals Court of Karlsruhe which was appealed and adjudicated by the Federal Supreme Court of Germany in May 2009. The conclusions are that in case of a conflict, it is better for a user to pay higher royalties rather than lower ones, then file a declaratory judgment action to have the right (ie. FRAND) royalties determined by the court. Alternatively, the user may wait until the patentee files the infringement action but this poses the risk that if the preliminarily paid royalties were not sufficient, the court will issue an injunction. Hess ends with an appeal to for comparative royalties in the various industry sectors to be determined and published; perhaps a role for LES.