Mobilstation (OLG Karlsruhe, 6 U 103/19, 2020)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Karlsruhe Higher Regional Court upholds the judgment against distributors of LTE phones and rejects their FRAND defence, their conduct aiming at delaying a licence until the patent expired (paras 299 and 385). It sets three rules: the patentee’s offer suffices if it is FRAND for an average licensee and explained (para 308); a counter-offer is due as long as the offer is not clearly non-FRAND (para 311); the licence seeker must cooperate in a targeted way and may not hold back objections for litigation (paras 304, 316 and 317). The judgment shifts scrutiny to the infringer’s conduct.

Facts and procedure

The claimant is registered as proprietor of a European patent on identifying a mobile station in a packet radio network, filed on 5 October 1999, partly declared invalid by the Federal Patent Court on 17 October 2018 and lapsed during the appeal (paras 2 to 4). Defendants 1 and 2 distribute LTE phones in Germany; defendant 3 was a managing director (para 5). As administrator of an LTE pool, the claimant offered a pool licence and then a bilateral licence in 2016 (paras 6 to 8). A counter-offer of 11 November 2016 and a deposit announced shortly before the February 2017 hearing (paras 9 and 11) were followed by new offers in 2017 and 2018, during an agreed stay of the action (paras 12 to 14). The Mannheim Regional Court granted the claims on 4 September 2019 (7 O 115/16).

The applicable law

Dominance, not disputed, governs acts prior to expiry of the patent (paras 290 and 291). The notice of infringement was sufficient without a claim chart (paras 292 to 298), and either party may in principle cure its obligations during proceedings (para 295).

Question

What is required of the patentee’s offer and of the licence seeker’s cooperation, and can a delaying infringer rely on the FRAND defence?

Decision

Willingness must be clear, unconditional and serious, not mere lip service (para 301). It is not static: the seeker must cooperate in a targeted way, even below the threshold of a counter-offer, without delaying tactics, consistently with paragraphs 63 and 65 of Huawei v ZTE (paras 302 to 305). FRAND is a corridor (para 307). An explained offer that is FRAND for an average licensee suffices (paras 308 to 310). A counter-offer is due unless the offer is clearly non-FRAND, the Senate departing here from the position of the Düsseldorf Higher Regional Court (paras 311, 312 and 315), and objections must be raised promptly (paras 316 and 317).

Here, counter-offer and deposit tracked the procedural calendar (paras 322 and 323); the defendants were slow to respond (paras 325 to 331), let the draft confidentiality agreement lapse (paras 333 and 334), obstructed enforcement (para 335) and never accessed the data room of anonymised third party licences (paras 337 to 341). Their criticisms of the offers fail: a top-down explanation sufficed (para 344), no cost-based calculation was owed (paras 346 and 358), and the disputed terms (worldwide licence, five year term, bank guarantee, no 5G) are not clearly non-FRAND (paras 352 to 376).

The appeal of defendants 1 and 2 is dismissed, their liability being limited to acts committed up to and including 5 October 2019; that of defendant 3 partly succeeds; the counterclaim for disclosure of third party licences is dismissed (operative part and paras 387 to 394). No stay is granted pending the Düsseldorf Regional Court’s reference (para 395). According to the documentation note attached to the text, the appeal X ZR 2/21 was withdrawn.

Key points for practice

• A standard offer, FRAND for an average licensee and explained, suffices without prior tailoring to each seeker (paras 308 and 310).
• A counter-offer becomes due once the offer is not manifestly non-FRAND, which rejects a strictly sequential reading (paras 311 and 312).
• The seeker’s conduct, down to whether it consults a data room, is evidence of its willingness (paras 321 to 341).
• Practical point: a licence seeker should respond quickly, put its objections in writing during negotiations, deal promptly with the confidentiality agreement and review the comparable licences offered; objections first raised in court are presumed tactical (paras 317, 334 and 338).

Provisions applied

Treaty on the Functioning of the European Union

art. 102

European Union

Regulation (EU) No 1215/2012, Articles 7(2) and 8(3)

National law

sections 15(3), 83(1) and 140a(4) PatG; sections 33, 33a and 33g GWB; sections 148, 529, 533 and 712 ZPO

Case law cited

CJEU, 16 July 2015, C-170/13 (Huawei v ZTE); BGH, GRUR 2020, 961 (FRAND-Einwand); OLG Karlsruhe, GRUR 2020, 166 (Datenpaketverarbeitung); OLG Düsseldorf, NZKart 2016, 139; BGH, Wasserpreise Calw I and II; OLG Düsseldorf, 22 March 2019, 2 U 31/16 (Improving Handover); LG Mannheim, 21 August 2020, 2 O 136/18

Related decisions

• BGH, KZR 36/17, 5 May 2020, FRAND-Einwand judgment applied by the Senate.
• CJEU, Huawei v ZTE, 16 July 2015, framework whose scope the Senate clarifies (paras 304 and 315).
• OLG Düsseldorf, I-15 U 66/15, 30 March 2017, judgment whose licensee “x5” the Senate discusses in relation to alleged discrimination (paras 355 and 390).
• LG Düsseldorf, 4c O 17/19, 26 November 2020, preliminary reference held not to justify a stay (para 395).

Prepared by Dhenne Avocats from the text of the decision (WIPO Lex, German text), consulted on 11 October 2026. Only the official text is authoritative.