UPC: Importance of the Initial Willingness to License in the FRAND Defense

In this major judgment, the Local Chamber Düsseldorf addresses the application of the CJEU's Huawei/ZTE case law concerning standard-essential patents. A dominant position within the meaning of Article 102 of the Treaty on the Functioning of the European Union on the relevant market can result from the fact that, without a license to the patent in suit, no products (here Smart TVs) can be offered that are compatible with a common standard. Decisive in this regard is the consumer's expectation that Smart TVs include all common audio and video codecs, thereby enabling them to decode all content encoded accordingly by service providers. If, in applying the negotiation framework established by the CJEU on 16 July 2015 (Case C-170/13, Huawei), the infringer fails to express an initial willingness to take a license ("Step 2") after the patent proprietor has notified them of the patent infringement ("Step 1"), the assessment ends. The question of whether the patent proprietor's offer is fair, reasonable, and non-discriminatory (FRAND) then no longer requires investigation. (LC Düsseldorf 18. 3. 2026, CFI 135/2024, CFI 477/2024)