tag:blogger.com,1999:blog-5574479.post1305561681809639780..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Dutch see Orange Book differently; Philips prevails againVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-43967845265248958022010-03-23T15:58:12.352+00:002010-03-23T15:58:12.352+00:00the EPLAW Patent Blog just posted an English trans...the EPLAW Patent Blog just posted an English translation of the relevant parts of the decision, see http://www.eplawpatentblog.com/eplaw/2010/03/nl-philips-v-sk-kasetten-frand.html#moreMark Schweizerhttps://www.blogger.com/profile/04460433294632554129noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-31368304073225546782010-03-18T13:06:20.746+00:002010-03-18T13:06:20.746+00:00Thank you, Jasper, for sharing your insights!Thank you, Jasper, for sharing your insights!Mark Schweizerhttps://www.blogger.com/profile/04460433294632554129noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-35102774668062855702010-03-18T12:24:08.570+00:002010-03-18T12:24:08.570+00:00Just read the Dutch decision.
The Dutch court is ...Just read the Dutch decision.<br /><br />The Dutch court is aware that their criteria differ from the criteria as laid down by the Bundesgerichthof.<br />According to the Dutch court, application of the German decision in the Netherlands:<br />(i) is in potential conflict with (Dutch) patent legislation, as without a licence, Philips would be still free to enforce its rights<br />(ii) introduces uncertainty, as it will always be uncertain that a claim to a FRAND licence will be implemented in the actual licence; and<br />(iii) is not required for protection of the legitimate protection of the defendant. SK could have arranged for a licence with Philips upfront. They did not, apparently. In addition, they did not make any monetary reservations to pay any licensing fee. The Dutch court also indicates that SK could have asked the Dutch court for a provisional declaration that Philips should provide a FRAND licence - which SK did not do.<br /><br />Furthermore, according to the court, SK did in any case not comply with the requirements of the German court, so applying the German decision would not have resulted in a different decision. In particular,<br /><br />What I find interesting is that the Dutch court talks about "a claim to a licence" rather than "an unconditional offer to enter into a licence" about which the German court talks, as far as I recall. These are in my opinion two significantly different things. The first one is: I have a right to a licence under your patent rights, whereas the second one is: I am willing to enter into a licence under FRAND terms & conditions, being x, y and z (and I am already living up to those terms and conditions, in particular w.r.t. the financial aspects).<br /><br />Based on the facts in the decision, I really wonder whether this different approach would have yielded another decision. However, the in my opinion different German approach would take away a lot of uncertainty referred to by the Dutch court under (ii) and (iii).<br /><br />So in summary, the Dutch court:<br />- Is not inclined to apply the German requirements as laid down by the Bundesgerichthof and applies a stricter approach; and<br />- Interprets the requirements as laid down by the Bundesgerichthof a bit differently than as I understand them (claim to a licence vs. an unconditional offer to enter into a licence agreement)<br /><br />Besides, this still does not solve the question what FRAND actually means...Jasper Groot Koerkampnoreply@blogger.com