Friday, January 15, 2021

Dusseldorf Regional Court stands by CJEU referral of patent licensing questions, Nokia's interlocutory appeal goes up to Dusseldorf Higher Regional Court

While the four members of the panel discussion I published as a podcast earlier this week expressed a diversity of views, there was a consensus about the potentially high impact of the Dusseldorf Regional Court's decision to refer a set of standard-essential patent (SEP) licensing questions to the Court of Justice of the European Union (CJEU). But those questions haven't arrived in Luxembourg (the CJEU's seat) yet, as Nokia brought an interlocutory appeal last month.

The way those interlocutory appeals work in Germany is that the lower court firstly treats it as what in the U.S. would be called a motion for reconsideration. If it changes mind, the appeal has succeeded. Otherwise the appeal will go up to the next higher court.

The latter is what has happened here. Just today, the Dusseldorf Regional Court's 4c Civil Chamber (Presiding Judge: Sabine Klepsch) handed down its decision and, as presumably everyone (even Nokia) expected, defended its referral order. Prior to doing so, the panel held that the decision isn't appealable in the first place. Appealability was addressed by Nokia's outside counsel from the Arnold & Ruess firm at length, but to no avail. So from the lower court's perspective, Nokia's appeal is both procedurally impossible (as the court noted that most German courts consider those appeals inadmissible and the cases cited by Nokia were deemed inapposite) and substantively meritless. By disagreeing with Nokia in only one of those two ways, the court wouldn't have had to reach the other part, but sought to make its order doubly appeal-proof.

So there are two hurdles for Nokia to overcome now before the appeals court, the Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court). I'd be very surprised if this interlocutory appeal succeeded there. Affirmance may take a few weeks, and then, finally, the issues raised will be put before the top EU court.

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