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IPRs and Standards - Balancing Interests of Licensors and Licensees Claudia Tapia

IPRs and Standards - Balancing Interests of Licensors and Licensees Claudia Tapia Research In Motion 14. October 2009. NEW ENTRANT. TRYING TO ENTER GSM STANDARD THREAT OF INJUNCTION DILEMMA LICENSEE. BGH – Orange Book Standard case.

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IPRs and Standards - Balancing Interests of Licensors and Licensees Claudia Tapia

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  1. IPRs and Standards - Balancing Interests of Licensors and Licensees Claudia Tapia Research In Motion 14. October 2009

  2. NEW ENTRANT • TRYING TO ENTER GSM STANDARD • THREAT OF INJUNCTION • DILEMMA LICENSEE

  3. BGH – Orange Book Standard case • Ref.: German Federal Supreme Court, BGH, Orange Book Standard 05 May 2009, KZR 39/06 • COMPULSORY LICENSE DEFENSE under cartel law against the patent owner’s request for injunctive relief is POSSIBLE • PREREQUISITES:

  4. BGH – Orange Book Standard case • Licensee may make unconditional offer of concrete percentage • Licensee thinks 1% is ‚reasonable‘  DILEMMA • COURT allows Licensee: unconditional offer to conclude a • license agreement  the patentee determines the amount of • royalties according to his own reasonable discretion

  5. BGH – Orange Book Standard case • Ideally Licensee pays the amount calculated by licensor • COURT: payment or deposit • of a ‘sufficient royalty’ • What is ‘sufficient’? Sufficient = ‘reasonable’?

  6. BGH – Orange Book Standard case SUGGESTION Assuming Y thinks 10% is not reasonable • Licenseeask court examine if licensor has determined rate at his reasonably exercised discretion (Sec. 315 CC)

  7. BGH – Orange Book Standard case

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