EUPillar LG Mannheim, 29.05.2015

Summary

The Austrian plaintiff is owner of a German patent which is part of a European patent. The defendant derives his right to use from a concession contract with the plaintiff. The court held that – pursuant to Art. 10(1) Rome I – it was decisive which law applied to the issue given the case that the license contract had been concluded effectively. This is the law of the place where the licenser habitually has his seat: The court states that a license agreement falls under Art 4 (2) Rome I. The characteristic performance in patent license contracts according to the court is the granting of the right of use. In crossing licence contracts the determination can be difficult as both parties contribute rights to the contract. If they are seated in different countries, both laws can be decisive (here: Italy and Austria). The lex loci protectionis cannot be applied as there are 9 patents involved, amongst them several European patents presumably protected in more than one state. As the concerned laws did not contain crucially differing provisions on the conclusion of crossing license contracts, the court left the issue of the law applicable to the contract open. The Italian as well as the Austrian law allows the implied conclusion of such a contract.