Context:
- In 2022, the Mannheim Regional Court’s 2nd Civil Chamber (then under Presiding Judge Dr. Holger Kircher) threw out an antitrust complaint by Deutsche Telekom against Fortress-backed licensing firm IPCom. Deutsche Telekom argued that IPCom violated antitrust law by not enforcing its cellular standard-essential patents (SEPs) against Deutsche Telekom’s competitors. But there was a clause in the license agreement that explicitly ruled out any obligation to do so, and Judge Dr. Kircher indicated that there was any number of other reasons to arrive at the same conclusoin.
- In October 2023, the Karlsruhe Higher Regional Court’s 6th Civil Senate under meanwhile-retired Presiding Judge Andreas Voss (“Voß” in German) affirmed the Mannheim ruling. Deutsche Telekom filed a Nichtzulassungsbeschwerde (“complaint over refusal to allow an appeal”), the equivalent of a petition for writ of certiorari, with the Bundesgerichtshof (Federal Court of Justice of Germany).
- Meanwhile, a different SEP case reached the Antitrust Senate of the Federal Court of Justice: VoiceAge EVS v. HMD. The Federal Court of Justice rejected HMD’s appeal as well as the European Commission’s request for a preliminary reference to the European Court of Justice (January 27, 2026 ip fray article). HMD issued a press release indicating that a constitutional complaint, to be lodged with the Bundesverfassungsgericht (Federal Constitutional Court of Germany), may follow.
What’s new: On January 27 (last week’s Tuesday), the Antitrust Senate of the Federal Court of Justice not only heard and decided HMD’s appeal but also made another decision that we have now found out about: the denial of Deutsche Telekom’s petition to appeal.
Direct impact:
- The denial merely recites the abstract criteria for a permission to appeal and holds that the requirements were not met, but invokes Art. 544(6)(2) of the German Code of Civil Procedure, pursuant to which the court does not have to state the specific reasons when it is unnecessary. This suggests that the decision, even though it comes approximately two years after the filing of the petition, was clear. In the court’s opinion, there was no debate.
- This terminates the proceedings for all practical intents and purposes.
- Under Germany’s “loser pays” rule, Deutsche Telekom owes a substantial reimbursement of legal fees not only to IPCom but also to multiple intervenors, among them IPCom’s managing director Pio Suh (who participated as a corporate representative of IPCom, as an intervenor, and as his own attorney-at-law) and IPCom founder Bernhard Frohwitter. Each lawyer is entitled to a fee in the middle six figures under Germany’s fee-shifting rules. The value in dispute was €200M, which for fee-shifting purposes is statutorily capped at €30M.
Wider ramifications: This was an outlier case because of an explicit waiver of any competition claims. It cannot be ruled out that other SEP licensees will bring antitrust claims over a licensor’s decision not to sue their competitors, but without a contract clause precluding such claims. The hurdle for such cases would presumably be very high in Germany.
It is not known whether the Federal Court of Justice also felt that Deutsche Telekom was suing over a contract clause it had voluntarily accepted back in 2013, at a point in time where IPCom did not have any leverage from an actual or imminent injunction. But chances are that it was at least part of the reason for which the petition was denied (and even without specifying the reasons).
The history of the contract negotiations between the parties was discussed during the proceedings in the lower courts. It started with Deutsche Telekom’s desire to impose a contractual obligation on IPCom to enforce its SEPs against other unlicensed carriers. But attorney-at-law Dr. Roman Sedlmaier (now at IPCGS, back then at the Frohwitter firm) was negotiating the agreement on IPCom’s behalf and turned this around: he got Deutsche Telekom to agree to a clause according to which IPCom explicitly had no obligation to go after anyone else. Meanwhile, Dr. Sedlmaier is well-known as the mastermind behind BSH Hausgeräte v. Electrolux (February 25, 2025 ip fray article). And next week he will represent Bernhard Frohwitter’s ParTec in the Unified Patent Court’s Munich Local Division against NVIDIA (January 13, 2026 ip fray article).
IPCom’s winning outside counsel in the antitrust dispute (who triumphed at all stages of proceeding) was a Quinn Emanuel team led by Dr. Jérôme Kommer.
IPCom has meanwhile obtained its “homegrown” 5G patents. It is an Avanci licensor and licensing those patents bilaterally to implementers. Mr. Suh took over as managing director in difficult circumstances and managed to settle dispute after dispute. And he has now fended off Deutsche Telekom’s antitrust lawsuit.