The FRAND Objection – A Comparative Guide to UPC and German Practice

Resumo

The FRAND objection – the antitrust defense of compulsory licensing in patent infringement proceedings – with its strategic importance for globally operating corporations has become one of the most high-profile and closely watched questions in European patent litigation. A decade after the Court of Justice of the European Union (CJEU) laid down its negotiation framework in Huawei v. ZTE, its precise application remains inconsistent – even prompting the European Commission (EC) to intervene along the way as amicus curiae before German courts, pushing for a strictly sequential reading and a renewed referral to the CJEU. This article offers a practitioner-oriented comparative guide to the refined, but in their details by no means uniform, lines of authority developed by the German courts – recently consolidated in early 2026 by the Federal Court of Justice (FCJ), Germany’s highest court in patent and antitrust matters, in a decision highly anticipated in the global IP community – and to the evolving case law of the young and upcoming Unified Patent Court (UPC). It further maps strategic developments reshaping the field: counterclaims for rate-setting, proactive antitrust actions for concluding a license, and protective measures against foreign interim-license orders.