Fraunhofer-Gesellschaft v Acer Computer (CFI, 16 July 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a procedural order of 16 July 2026 (UPC_CFI_2231/2025, EP 2 304 723), the judge-rapporteur of the Hamburg Local Division, at Fraunhofer’s request and with no objection from the Acer defendants or the third party concerned, ordered the administrator of the Opus standard licensing pool to produce, within two weeks, the comparable licences and settlement agreements relating to the Opus portfolio, together with their amendments and side letters. The documents are subject to a « Highly Confidential » regime. The order shows how an SEP holder can obtain, even before its reply, the comparable licences it needs to answer a FRAND defence.

Question

Can a patentee answering a FRAND defence obtain from a third party, under Rule 190.1 RoP, production of comparable licences subject to confidentiality clauses, and on what access terms?

Decision

Rule 190 RoP and Art. 59 UPCA give the party bearing the burden of proof the means to discharge it, a FRAND defence creating competing interests (paragraph 9). The Court has discretion, including over sequencing under Rule 334(e) RoP, and a request before the reply is appropriate (paragraphs 10 and 11). The claimant does not hold the agreements, which the third party cannot disclose without a court order. There being no objection, production is ordered (paragraphs 12 and 13). Access is limited to the representatives, up to three external economic experts and up to three party representatives who must stay out of licensing negotiations with the counterparties for two years, on pain of a penalty payment (paragraphs 14 and 15).

Key points for practice

• Production of comparable licences held by a pool administrator may be ordered against a third party under Rule 190.1 RoP at the stage of the reply to a FRAND defence (paragraphs 11 to 13).
• Practical point: offering a restricted access regime from the outset, with a two-year bar on taking part in licensing negotiations, makes it easier to secure the agreement of the third party and the defendants (paragraph 14).

Provisions applied

Agreement on a Unified Patent Court

Art. 59

Rules of Procedure

Rules 190.1, 190.2, 190.5, 262.3 and 334(e)

Case law cited

Polytechnik v Dall Energy, Court of Appeal, 29 June 2026 (UPC_CoA_57/2026), Oppo v Panasonic, Court of Appeal, 24 September 2024 (UPC_CoA_298/2024 to UPC_CoA_300/2024), Huawei v MediaTek, Mannheim Local Division, 16 September 2025 (UPC_CFI_247/2025)

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.