Orange Book Standard Case Analysis
I. Analysis
A. The decision of the Orange Book Standard in Germany
In the process of the Orange Book Standard, the courts of the first instance and literature have a controversial opinion about whether a counterclaim based on a claim based on Section 33(1) German Act Against Restraints of Competition in conjunction with Article 82 EC or Sections 19 & 20 German Act Against Restraints of Competition can be raised against the claim for injunction relief.
On one side, the injunction relief for the defendants seems the plaintiff ask for something he would to return back right now, and thus, this request violating the pro of good faith standard in the Section 242 CCC. On the other side, the defense under competition law is successful in infringement
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According to the above requirements, the Germany federal supreme court examined the deposition of the defendants and considered that even thought the defendants offered a license agreement at a royalty 3%, they did not show whether they accounted for the royalties they owed according to their own opinion and deposited a corresponding amount. On the one word, they failed to the requirements of the compulsory license defense under the competition law.
B. The Strict Requirements for
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The proposed licensee has burden of proof to show the above requirements are achieved. By Contrast, SEPs holders have no duties on engaging with license agreements made by the party seeking a license. To sum up, proposed licensees will not so easy escaped for competitors to rely on German Act Against Restraints of Competition as a defense against a patent infringement claim.
C. The policy between Patent and Competition
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