Munich’s new FRAND Guidelines put economic evidence at the heart of comparable-licence analysis and top-down valuation.
The practical message for SEP litigants is simple: hire an economist early—well before the FRAND hearing.
German SEP litigation has historically placed considerable emphasis on the parties’ negotiating conduct—particularly whether the implementer was a “willing licensee.” Many cases could therefore be decided at that threshold without a detailed examination of the royalty. This is increasingly changing.
On 13 August 2026, the 7th Civil Chamber of the Munich I Regional Court completed and issued its FRAND Guidelines. Although the Guidelines are not binding law—and represent the position of that Chamber rather than the Munich court as a whole—they explain how the Chamber has approached, and intends to approach, FRAND disputes.
The Guidelines emphasise economic analysis and the use of party-retained experts in appropriate cases. At a high level, Munich’s methodological hierarchy resembles that adopted by the English courts in Unwired Planet v Huawei: comparable licences provide the primary evidence, while a top-down calculation is used mainly as a cross-check. Where suitable comparables or an established licensing practice do not exist, Munich may use the top-down approach to establish the royalty benchmark directly.
The institutional setting is nevertheless different. English courts can determine the terms of a global FRAND licence. Munich generally asks whether the SEP holder’s offer falls within a permissible FRAND range in the context of an infringement action.
Munich also takes a materially different approach to the production of comparable agreements. It permits the SEP holder to select the agreements it presents as the best comparables. However, that selection must adequately represent the holder’s actual licensing practice: the SEP holder must identify other agreements covering the standard and explain why they were not submitted. The Chamber generally will not compel production of a licence against the holder’s wishes. The Guidelines nevertheless provide unusually detailed guidance on what makes an agreement economically comparable.
Core comparability criteria
| Criterion | Munich treatment |
| Portfolio | Same licensor and materially the same patent portfolio |
| Recency | Normally no more than five years old; older agreements require particular scrutiny |
| Standard scope | Single-standard licences should ordinarily be compared with single-standard licences |
| Product category | Same or economically comparable products; relevant differences may sometimes be adjusted |
| Volume | Differences may justify adjustments, including discounts of up to approximately 30% for exceptionally large volumes |
| Contract timing | A first licence, a renewal and an agreement concluded under the threat of an injunction represent different economic circumstances |
| Duration | Licence duration must be considered when determining and normalising the effective rate |
| Litigation context | Relevant, but litigation or injunction pressure does not automatically disqualify an agreement as a comparator |
| Cross-licence | Usually unsuitable unless the respective portfolios and reciprocal consideration can be valued independently |
| Geographic coverage | Geographic adjustments are permitted only exceptionally |
| Party conduct | May affect where the appropriate rate falls within the FRAND range |
The message is clear: FRAND litigation before Munich’s 7th Civil Chamber increasingly involves economics, not merely formal negotiating conduct. Party experts can assist with unpacking lump-sum agreements, normalising rates, valuing contractual options, analysing past releases, assessing patent quality and testing top-down assumptions.
The Chamber does not intend to appoint its own experts to determine FRAND royalties, because it regards the ultimate reasonableness of the rate as a legal question. Economic evidence will instead be introduced and tested through the parties. For litigants appearing before Judges Dr Schön, Tözsér and Dr Schweyer, the practical implication is straightforward: prepare the economics early—and have your economist ready for the next FRAND hearing.