The disputes concern the infringement proceedings of Nokia from various mobile phone SEPs against Daimler on account of a telematics control unit (TCU) which establishes a radio link between the vehicle and the base stations of the mobile phone networks.
Nokia refuses to grant the suppliers (on different levels) of the TCU a licence on their standard essential patents and instead demands a certain amount per TCU from the car manufacturer.
In a 24-page statement the Federal Cartel Office outlined the position of the parties and in particular the legal implications from the point of view of the antitrust authority. In particular, the questions are addressed as to whether it is not necessary under antitrust law to grant a licence to any buyer and thus to any supplier on request, irrespective of its production stage. Finally, the question is also addressed whether the car manufacturer can counter Nokia’s claim that all of its suppliers have demanded a license from Nokia and in one case even filed a lawsuit against Nokia for a license offer.
Furthermore, the central question is raised whether an SEP holder is free to choose one market level of licensees and exclude all other market levels from licensing.
The referral questions suggested by the Federal Cartel Office go to the heart of the dispute. Nokia has disputed that it is obliged to grant a licence to anyone, although the ETSI rules, which set out the standardisation procedure, provide precisely that.
The Federal Cartel Office’s questions will therefore give the ECJ the opportunity to take a clarifying look at the entire standardisation system and have far-reaching consequences, in particular for IoT. Since the legislator has remained inactive in this economically enormously important area, the ECJ will therefore set the future rules on European antitrust law if the German courts follow the Federal Cartel Office’s request and refer the proceedings to Luxemburg.
