November 5, 2020
As covered in our previous article (read the summary here), in September 2020 the LG München I (District Court of Munich I) decided in favour of Nokia in a preliminary injunction against Lenovo, in which the SEP case related to a video standard (H.264 – also known as MPEG-4 part 10), which Lenovo uses in its laptops and PCs.
Shortly after Lenovo appealed the decision against it having to remove the concerned products from its German website, the OLG Munich (Munich Higher Regional Court) made an unexpectedly quick decision on the appeal, and has now stopped the enforcement of the interim injunction. Lenovo’s products can now be ordered again on the company’s homepage.
In the present case (21 O 13026/19), the Court of Appeal has based its decision on the high probability that the patent in dispute lacks legal validity. In the German patent infringement system, the validity of the patent is not examined by the infringement court, but by the Federal Patent Court in a separate procedure (bifurcation). The infringement courts, however, have the possibility to suspend their proceedings if it is highly likely that the patent in dispute lacks legal validity. In the present case, the OLG has thus justified the revocation of the first instance ruling.
The decision of the OLG Munich suspends the preliminary injunction of the LG München, but on the basis of procedural grounds. It remains to be seen whether the Court of Appeal, in its written reasoning, makes further statements in the context of an orbiter dictum, which deals with the application of the FRAND criteria by the court of first instance.