Indicative Overview of FRAND-Defense Requirements in UPC Panasonic v. Oppo (Mannheim Local Division)
Before initiating proceedings, SEP holder to alert the implementer of the infringement.
By designating that SEP and specifying the way in which it has been infringed.
Claim charts of enforced SEP are always sufficient:
– Reference to patent is suit sufficient if claim chart to family member included.
Implementer to express its willingness to conclude a licensing agreement on FRAND terms.
Assessed against overall view together with the conduct of SEP holder, its offer and especially the implementer’s objections thereto.
Reciprocal obligation to negotiate to achieve timely conclusion of FRAND licence in targeted negotiations on primarily private-autonomous basis.
Approval by general meeting (GM)
CDT
Signing
Communication by electronic means of the CDT and the cross-border operation board report(s) to shareholders and employees
Dissenting shareholders can exercise their cash-out right (no suspensive effect)
Dissenting shareholders can request additional cash compensation
Legality control performed, and acknowlegement of completion of cross border operation by Lux notary when Lux is destination EEA State
Payment of cash compensation to dissenting shareholders (no suspensive effect)
Legality control performed by Lux notary when Lux Is the departing EEA State
Delivery of pre-operation certificate by Lux notary
Effective date of the operation determined by destination EEA State
Once effective, the operation can no longer be annulled
Filing of CDT in Lux RCS and publication in RESA
AT LEAST SIX WEEKS BEFORE
Communication at the registered office of the CDT, cross-border operation board report(s), independent expert report(s), AA for the last three financial years and related management reports, interim accounts (as applicable) to shareholders
Notice (to be published in Lux RESA) to shareholders, creditors and employees that they can submit comments on CDT at least five working days before GM
Effective date of the operation between parties* (*only for merger's and conversions - the division takes effect as of Lux RESA's publication of its completion - subject to receipt of a pre-operation certificate from other EEA authority)
ONE MONTH MANDATORY WAITING PERIOD
Must outline the terms and conditions of the proposed Cross-Border operation
Filing
MAX ONE MONTH AFTER GM
MAX TWO MONTHS AFTER EFFECT OF THE OPERATION
MAX THREE MONTHS AFTER GM (RENEWABLE FOR THREE MONTHS)
ASAP AFTER GM
AT LEAST ONE MONTH BEFORE GM
CASH-OUT RIGHT
THREE MONTH CREDITORS SAFEGUARD PERIOD (NO SUSPENSIVE EFFECT)
Main legal steps for EEA Cross-Border Operations
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