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January 27, 2026 FRAND-Update

HMD / Voice Age

Niels Schuh
Lawyer
Dusseldorf

FRAND-Update: Federal Court of Justice heared case HMD ./. Voice Age 

On Tuesday, January 27 2026, the German Federal Court of Justice (BGH) heard the appeal in the case between HMD and Voice Age (docket no: KZR 10/25). For the first time since the decisions of the Federal Courts of Justice “FRAND-Einwand I” (decision of 5.05.2020 - KZR 36/17)  and “FRAND-Einwand II” (decision of 24.11.2020 - KZR 35/17) the Federal Court of Justice had to the decide on the requirements of a successful FRAND-defense in disputes involving standard-essential patents (SEPs).  

 

I. Legal Framework of Huawei ./. ZTE (CJEU, decision of 16.07.2015 - C-170/13)

In its decision of 16.07.2015 - C-170/13 the Court of Justice of the European Union (CJEU) laid out the framework, in which parties have to act during negotiations (c.f. decision, margin numbers 61 seqq.): 

  • The SEP-holder has to notice the patent user of the use of the patent.
  • The patent user has to declare the willingness to take a license under FRAND terms.
  • The SEP-holder has to offer a license to the patent user.
  • If the patent user does not accept this offer, the patent user has to make a counteroffer.
  • If the implementer is using the SEP, the implementer has to provide “adequate security”. 

These requirements continue to serve as the central guideline for FRAND/SEP disputes within the EU.

 

II. Federal Court of Justice in Voice Age ./. HMD

While the written decision has not been issued, the Federal Court of Justice considered inter alia two aspects in the oral hearing:

Huawei/ZTE steps are not strictly sequential

In the view of the German Federal Court of Justice, the steps of Huawei ./. ZTE are not strictly subsequent. Thus, even in the case that the offer by the SEP holder may not have been FRAND, the implementer has to follow the framework. If the implementer fails to follow the steps of Huawei ./. ZTE, the implementer cannot raise a successful FRAND-defense. 

HMD did not provide adequate security

In the present case, the Federal Court of Justice found that HMD failed to provide adequate security. Thus, the Federal Court of Justice did not have to decide if the offer by Voice Age was indeed FRAND. 

III. No referral to the CJEU

The European Commission intervened in the proceedings, urging the Federal Court of Justice to refer the case to the Court of Justice of the European Union (CJEU). However, the Federal Court of Justice deemed the question of whether the amount of security to be provided by the defendant should be based on the patent holder's license agreement offer to be irrelevant, as the security provided was significantly lower than the defendant's own offer. Therefore, the Federal Court of Justice did not refer the case to the CJEU. 

 

Press release BGH