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German High Court Ruling Sets Standard for FRAND Negotiations

In the written decision in Sisvel International S.A. v. Haier Deutschland GmbH, Germany’s highest court—the Cartel Senate of the German Federal Court of Justice (“FCJ”)—held that, during pre-suit negotiations, before a patent expires, implementers of standard-essential patents (SEPs) must clearly and unequivocally declare their willingness to conclude a license agreement on fair, reasonable, and non-discriminatory (“FRAND”) terms. If they do not, the FCJ held, those implementers may not be able to hold an SEP-holder liable in Europe for anticompetitive behavior. The Court also provided guidance on the obligations of an SEP holder to avoid abuse of dominance charges, including in the context of making a demand for a worldwide SEP portfolio license. Ultimately, this decision provides important guidance to both patentees and putative infringers about the steps necessary to avoid abuse of dominance allegations and invoke rights to a FRAND license in Germany.

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New Threshold and Penalty Amounts Applicable to Hart-Scott-Rodino Filings


Time to Read: 1 minutes Practices: Antitrust

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Transactions closing on or after February 12, 2009 will be subject to the following revised HSR jurisdictional and filing fee thresholds:

Size-of-Transaction Test

  • The threshold used in the size-of-transaction test will increase from $63.1 million to $65.2 million of voting securities, assets, or non-corporate interests held by an acquiring person.

Size-of-Persons Test

  • The sales and assets thresholds used in the size-of-persons test will increase from $12.6 million to $13 million and from $126.2 million to $130.3 million.
  • The size-of-persons test will apply to transactions valued at less than $260.7 million.

Filing Fees

  • Filing fee thresholds based upon the value of the assets or voting securities being acquired will be revised as follows:

Value of Transaction

Filing Fee

 

$65.2 to $130.3 million (previously $63.1-$126.2 million)

 

$45,000

$130.3 to $651.7 million (previously $126.2 - $630.8 million)

 

$125,000

$651.7 million or more (previously $630.8 million or more)

$280,000

 

 

 

 

 

 

 

 Penalties

  • The maximum civil penalty for HSR-related violations will increase from $11,000 to $16,000 per day and is applicable to transactions closing on or after February 8, 2009.

Other value limitations contained in the HSR coverage and exemption rules have also been adjusted.

If you have any questions about this decision, please contact any of the attorneys listed on this page or your regular Ropes & Gray legal advisor.

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