Implementer suing Chinese cellular SEP holder in Frankfurt, Germany in pursuit of FRAND licensing terms

Context: Standard-essential patent (SEP) litigation is a field that sparks extraordinary creativity. The proposed EU SEP Regulation has been withdrawn ,but some implementers of standards have recently placed bets on judicial help from the UK.

What’s new: An unknown implementer is suing an unknown Chinese cellular SEP holder in the Landgericht Frankfurt am Main (Frankfurt Regional Court) on antitrust grounds, demanding a license on FRAND terms. The information has surfaced because of a February 5, 2025 press release by the court that focuses on service of process, but also states the objective of the action.

Direct impact: The court will soon announce the decision. It may then become clearer who the parties are, but not necessarily so, as the order will be redacted. At this point, one possibility is Samsung, whose German subsidiary is based in Eschborn near Frankfurt, in which case the defendant might be ZTE. Samsung brought a pre-emptive FRAND action in the High Court of Justice for England & Wales (EWHC), and shortly thereafter, ZTE started filing infringement lawsuits such as in the Unified Patent Court (UPC).

Wider ramifications: The idea of filing an antitrust action in Germany to obligate a SEP holder to make a FRAND licensing offer is not new. Meanwhile-retired Presiding Judge Professor Thomas Kuehnen (“Kühnen” in German) of the Dusseldorf Higher Regional Court wrote an article approximately seven years ago in which he expressed his view that such a claim would be admissible. Huawei brought such a compaint against Nokia in the Dusseldorf Regional Court in 2019, but at some point the two parties settled, prior to any decision on the merits.

The Frankfurt Regional Court is one of a limited number of German courts that can hear patent cases, but for an antitrust action that would not be a requirement even with a patent license being the plaintiff’s objective. If a party brought such a claim in a court that also hears patent cases, there is a possibility of one or more patent judges actually joining the antitrust panel or the case being assigned to a patent-specialized panel in the first place. Frankfurt does have (limited) patent expertise, but is not a SEP enforcement hotspot.

Theoretically, a party can bring such a claim in any German regional court with an antitrust panel, and there are no forcible venue transfers in Germany in cases where any court would have jurisdiction. But it looks better if a party argues that it is suing in the nearest regional court, and that would apply (not only, but also) to Samsung in this case.

What suggests that this is not related to the dispute between Samsung and ZTE is, however, that Samsung brought a FRAND action, in pursuit of a global license, in the UK. Demanding a global FRAND license in two juridictions in parallel could result in one of the courts declining to grant the requested relief.

Whoever brought that proactive FRAND action in Germany might hope that the courts hearing any SEP infringement cases brought by that SEP holder would then be prepared to stay their cases, or at least the enforcement of any injunctions, pending the outcome of the FRAND action. German rules of civil procedure would make that a possibility, but the courts that hear most SEP infringement cases in Germany may look for ways to enjoin the implementer (once any infringements are identified) at any rate.

This situation is hazy, and we’ll try to find out more as soon as any information becomes available.