Here (German).
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
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My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
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My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
In the event that “the [infringer's] submission of a binding
offer to conclude a license agreement is a requirement” it would then be
necessary to clarify whether that offer should “involve specific substantive and/or
chronological requirements”, whether it would “have to set forth all of the
commercial terms that in accordance with relevant industry practice are usually
set forth in such license agreements,” and whether it could “be conditioned
upon actual use and/or validity of the SEP-in-suit”. Moreover, “in the event
that the infringer's [precontractual] fulfillment of obligations arising from
the requested license is a requirement” for the finding of a “willing licensee,”
the Court asks whether the infringer could be “required, in particular, to make
disclosures relating to past acts of infringement and/or to pay
[precontractual] royalties”, and, finally, whether the “obligation to pay
[precontractual] royalties” could also “be fulfilled by giving security.”
