Context: Last week, the Oberlandesgericht München (Munich Higher Regional Court) after going in circles for many months, handed down its VoiceAge EVS v. HMD standard-essential patent (SEP) ruling (March 20, 2025 ip fray article). The Munich appeals court believes that German courts should make more of an effort to determine whether a SEP holder’s (final) royalty demand was FRAND (fair, reasonable and non-discriminatory), but makes it a requirement for any in-depth analysis that implementers provide collateral that will (except in the most egregious of cases) be based on the patentee’s position. Neither SEP holders nor implementers deem that approach helpful, and the European Commission, which intervened as amicus curiae (“friend of the court”), disagrees as well. Recognizing the controversial nature of its decision, the Munich court granted leave to appeal the FRAND part of the case to the Bundesgerichtshof (Federal Court of Justice).
What’s new: HMD would have had another three weeks to appeal, but wants to change German SEP case law as quickly as possible and has already lodged its appeal. ip fray has researched the appellate case number: KZR 10/25. That means the case was assigned to the court’s antitrust-specialized panel under Professor Wolfgang Kirchhoff.
Direct impact: The swiftness of HMD’s appeal comes as a surprise, but the decision per se does not. In a run-of-the-mill SEP dispute, HMD would have had a strong incentive to give security, as suggested by the Munich appeals court, just to have another shot at prevailing on its FRAND defense. But HMD has been claiming for some time, despite contempt-of-court sanctions, that it can continue to sell smartphones in the German market by disabling the Enhanced Voice Services (EVS) audio coding standard. ip fray is not in a position to analyze the technical merits of that argument, but this explains why HMD can afford to see this litigation through.
Wider ramifications: This otherwise unspectacular matter became a landmark case only because of an amicus curiae intervention by the European Commission. It made the Munich appeals realize that something was wrong with the German approach to Huawei v. ZTE, given that virtually no FRAND defense has succeeded in Germany since even before the two Sisvel v. Haier (official caption: FRAND-Einwand) decisions by the Federal Court of Justice. Now the Federal Court of Justice, under the antitrust panel’s new presiding judge, has the opportunity to correct Sisvel v. Haier, and the best way to do so may be to refer some intelligently-crafted questions to the European Court of Justice (ECJ). The fact that this possibility is on the horizon is yet another reason for which the European Commission should stand by its intended withdrawal of the EU SEP Regulation. Judicial clarification of how to apply Huawei v. ZTE could be provided in the near term, almost certainly before any new EU law or regulation would take effect.
HMD’s interests in this dispute go far beyond the economic implications of a license agreement with VoiceAge EVS. As counsel for VoiceAge EVS said at last year’s appellate hearing, litigation expenses already far exceed the original royalty demand.
This makes it unlikely that HMD will settle. The question is whether VoiceAge EVS is equally prepared to stand its ground. Theoretically, VoiceAge EVS could end the case anytime by conceding the appeal. The company has already licensed almost the entire smartphone market, with HMD and OPPO being the only well-known exceptions. But it is also very unlikely that VoiceAge EVS will give up now.
The European Commission (EC), which obviously faces resource constraints, will now have to decide whether to remain involved. The effort would be limited as the EC has already stated its views and would merely have to reiterate them. The EC would probably reiterate its request for a preliminary reference to the ECJ. That would put the Federal Court of Justice in a position where, unless it resolves the case the way the EC suggests, a referral to the ECJ would be inevitable.
In 2021, the ECJ clarified in its Consortio Italian Management & Catania Multiservizi SpA v. Rete Ferroviaria Italian SpA decision that a final court of appeal of an EU member states must “bring before the Court of Justice a question concerning the interpretation of EU law that has been raised before it, unless it finds that that question is irrelevant or that the provision of EU law in question has already been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt.”
The Federal Court of Justice is a court of final appeal. Theoretically, there is a court above it: the Bundesverfassungsgericht (Federal Constitutional Court). But it has jurisdiction only over narrow questions of constitutional law, such as violations of the right to be heard.
Counsel
Both parties will have to appoint counsel with an admission to the Federal Court of Justice bar. It is an odd and old-fashioned system in Germany under which only a limited number of attorneys based in Karlsruhe are allowed to act as lead counsel. In a case like this, it takes experienced SEP litigators to brief the issues. In the end, the parties’ counsel in the proceedings so far will have to do most oft he work anyway.
HMD has been represented so far by a Hoyng Rokh Monegier team led by Lars Baum as well as a Hogan Lovells team led by Dr. Andreas von Falck (who also regularly defends Apple in Germany).
VoiceAge EVS has been represented so far by a Wildanger team led by Peter-Michael Weisse and Jasper Meyer zu Riemsloh.