Today, the Bundesgerichtshof (Federal Court of Justice of Germany) held its hearing in VoiceAge EVS v. HMD, a standard-essential patent (SEP) case in which defendant-appellant HMD aligned itself with the European Commission’s suggestion to refer questions of EU law to the European Court of Justice (ECJ) (August 1, 2025 ip fray article).
Based on the views outlined by the Cartel Senate of the Federal Court of Justice and the overall course of the hearing, it was already foreseeable (and confirmed shortly after 4 PM Central European Time) that VoiceAge EVS has won all the way. The appeal has been rejeted, so the injunction has been upheld, and the EU Commission’s request for a preliminary reference to the ECJ has been declined. The Federal Court of Justice stands by its Sisvel v. Haier I & II SEP case law. That news will be welcomed by net licensors of SEPs. It also means that the somewhat creative but grossly unconvincing security-centric ideas of the Munich Higher Regional Court are now irrelevant.
The Bundeskartellamt (Federal Cartel Office of Germany) also advocated sticking to existing German case law.
The formal decision came down at 4 PM Central European Time today. The Federal Court of Justice issued a press release (in German) according to which HMD was an unwilling licensee who had offered security below the level of its own licensing counterproposals. As for the strict sequentiality of the FRAND analysis under Huawei v. ZTE that the European Commission advocated, the German court says there can be no reasonable doubt that the steps laid out in the ECJ decision do not have to be applied strictly sequentially.
The hurdle for a court of final appeal to deny a preliminary reference is very high. Only if a question is irrelevant to a case or has already been fully clarified by the ECJ can a national court of final appeal decline to refer. The fact that the request came from the European Commission itself does not formally lend it more weight. Of course, a third party advocating a matter of public policy enjoys a certain credibility that parties, given their obvious interests, do not have. But the EC merely applies EU law; it does not make it. If the EC believes that a denial of a preliminary reference constitutes a breach of Art. 267(3) of the Treaty on the Functioning of the EU (TFEU), it can theoretically start infringement proceedings against the country, but there would be major political implications. The other theoretical possibility of HMD raising a damages claim against the Federal Republic of Germany under EU law, which would have to start in a German administrative court, is even less likely. In the Köbler case, the ECJ held that only very serious breaches of EU law can give rise to such liability. Finally, HMD could lodge a constitutional complaint with the Federal Constitutional Court of Germany (without which there might not even be a hypothetical damages claim). Also, the European Court of Human Rights, which is not an EU court, has held that arbitrary denials rise to a human rights violation (Art. 6(1) of the European Convention on Human Rights), such as in Gondert v. Germany.
Whether HMD will now settle and take a license from VoiceAge EVS is difficult to predict, given that HMD has been claiming for years that it has a workaround in place, though there have been contempt rulings.
VoiceAge has a perfect litigation track record. Even if there were temporary setbacks, they ended up winning case after case after case.
Counsel
Counsel for plaintiff-appellee VoiceAge EVS: Wildanger’s (an ip fray firm profile is in the making) Peter-Michael Weisse and Jasper Meyer zu Riemsloh.
Counsel for defendant-appellant HMD: Hoyng Rohk Monegier (ip fray firm profile) Lars Baum and Joscha Torweihe; Cleary Gottlieb Steen & Hamilton’s Julian Sanner and Philipp Kirst; and Hogan Lovells’s (an ip fray firm profile is in the making) Dr. Andreas von Falck und Oliver Baecker (“Bäcker” in German).
Due to Germany’s old-fashioned rules, parties must appoint a special counsel admitted to practice before the Federal Court of Justice (except in appeals of right, such as on patent validity). VoiceAge EVS appointed Prof. Christian Rohnke, and HMD chose Hall & Quast’s Dr. Reiner Hall.
Patent attorneys were involved in this case, but not before the Federal Court of Justice, where the focus was entirely on questions of competition law.