FRAND OFFER

This chapter examines the role of the patentee’s offer in maintaining a balanced equilibrium between dominant SEP holders and implementers, as outlined in the ECJ’s Huawei/ZTE framework. To avoid abusive conduct, the SEP holder must enable a fair balance of interests by presenting a specific written offer for a FRAND license after its infringement notice and the licensee’s expression of willingness to license. This triggers the licensee’s reaction duties. The chapter provides an overview of German case law, illustrating how the FRAND offer interfaces with willingness to license on FRAND terms. It delves into the standard of review, individual aspects of a FRAND offer, non-discrimination requirements, and the patentee’s position in the implementer’s value chain. Additionally, the chapter touches upon confidentiality considerations. By analyzing the legal effects of FRAND and non-FRAND offers, this chapter offers a comprehensive understanding of the intricate dynamics surrounding FRAND licensing negotiations.