@article{48611,
      recid = {48611},
      author = {Picht, Peter Georg,},
      title = {Proportionality Defenses in FRAND Cases : a Comparative  Assessment of the Revised German Patent Injunction Rules  and U.S. Case Law.},
      pages = {1 online resource (pages 435-450)},
      abstract = {In August 2021, the ‘Second Act for the Modernization of  Patent Law’ (Zweites Patentrechtsmoderni-sierungsgesetz)  introduced an explicit proportionality defense into Sec.  139(1) German Patent Act. Unlike the competition law or  national contract law prong of the Huawei defense in FRAND  cases, the proportionality defense thus derives from the  GPA itself. The new provision has already generated much  debate and some initial case law. According to public  knowledge, however, it has not yet been raised in a German  FRAND case, although it seems inevitable that this will  happen. Hence, this article offers to market participants  and the judiciary a proposed analytical framework for  considering such a proportionality defense in German FRAND  cases. For this purpose, it undertakes a comparative  assessment of U.S. patent injunction law. As to German law,  the focus is on whether the proportionality defense and the  FRAND license defense can be raised in parallel, whether  FRAND royalties are a suitable basis for calculating an  appropriate financial compensation under Sec. 139(1)(4) and  how a court should assess whether the impact of an  injunction in a FRAND case triggers the proportionality  defense.},
      url = {http://tind.wipo.int/record/48611},
      doi = {https://doi.org/10.1093/grurint/ikad024},
}