The German Federal Court of Justice (FCJ) established requirements for a fair, reasonable, and nondiscriminatory (FRAND) defense against injunction claims based on standard-essential patents (SEPs). VoiceAge v. HMD, Case No. KZR 10/25 (FCJ Jan. 27, 2026) (Rol-off, Deichfuß, Tolkmitt, Vogt-Beheim, Kochendörfer, JJ.)

Consistent with its earlier decisions, the FCJ adopted an approach that imposes strict procedural and substantive obligations on implementers in FRAND licensing negotiations. This approach reinforces a demanding framework for implementers. The FCJ rejected the implementer’s FRAND defense in this case.

The case attracted considerable attention because the European Commission, acting as the EU competition law authority, intervened by submitting an amicus curiae brief and presenting oral argument before the FCJ. The Commission’s participation underscored the ongoing de-bate over the proper interpretation of FRAND obligations under Article 102 TFEU and, more particularly, the framework established by the Court of Justice of the European Union (CJEU) in Huawei v. ZTE.

Willing licensee standard and the obligation to provide security

The FCJ found the implementer to be an unwilling licensee since it unduly delayed its responses to the SEP owner’s license offers and failed to provide adequate security in a timely manner. According to the FCJ, the implementer must promptly enter into negotiations with the SEP owner regarding licensing terms and submit a counteroffer, even if the SEP owner’s initial license offer was not FRAND-compliant. During licensing negotiations, the implementer should actively and constructively engage in efforts to conclude a FRAND-compliant license agreement.

Similar to the recent Statement of Interest by the US Department of Justice and the United States Patent and Trademark Office in US patent litigation between Collision Communications and Samsung, the FCJ underscored the importance of injunctive relief, including for nonpracticing entities (NPEs) and with respect to SEPs. According to the FCJ, only exclusive rights allow an invention to be subject to market processes, and the availability of damages claims does not alter this fundamental principle.

The FCJ cited case law from the Unified Patent Court (UPC) and from national courts in the Netherlands and the United Kingdom to support its reasoning. Taken together, these authorities demonstrate a growing consensus within the European judiciary toward interpreting FRAND obligations as establishing a high threshold for a successful FRAND defense. Consequently, FRAND jurisprudence is developing across Europe in a direction that is increasingly strict for implementers.

The FCJ emphasized that if the SEP owner rejects the counteroffer, the implementer must promptly provide adequate security. In this case, the implementer did not adequately do so because it did not even provide security corresponding to the royalties under its own relatively low counteroffer. However, the FCJ did not provide specific guidance on how to determine the required amount of security. The lower court relied on the amount of the SEP owner’s last offer, but the FCJ did not comment on this offer because the security that the implementer provided was too low.

Unlike lower instance courts, however, the FCJ emphasized in an obiter dictum that providing security is sufficient [...]

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