Since 2008, the European Commission has increasingly reviewed patent dispute settlement agreements. Among other things, it imposed fines for breaching Article 101 of the TFUE (see question 30) for a total amount of 146 million euros, if it were an agreement between the Danish pharmaceutical company Lundbeck and several generic drug manufacturers. As part of the agreement, Lundbeck made substantial payments to generic drug manufacturers to delay their publication of generic versions of a drug for which Lundbeck`s product patent had expired and for which it held only certain process patents offering more limited coverage. The European Commission`s decision was upheld by the Tribunal in a number of cases in September 2016 (T-472/13, T-460/13, T-467/13, T-469/13, T-470/13). The Court found that the European Commission had rightly refused to apply the exemptions in Article 101, paragraph 3 of the TFUE in favour of the parties. What are the consequences of terminating or expiring a licensing agreement on a sublicensing granted by the licensee in the absence of a contractual provision on this issue? In both cases, would a contractual provision dealing with this issue apply? Contracting parties are free to denounce the licence in accordance with the provisions of the agreement. German law does not limit the content of a termination clause (for the possibility of terminating the contract in the absence of a termination provision in the contract, see question 5). Therefore, German law generally does not place conditions or restrictions on the right to terminate or not renew a licensing relationship. An exception to this rule is that of compulsory licences (see question 2) which, by their nature, cannot be terminated by the licensee without good reason. For restrictions on the right to terminate when the taker has requested insolvency proceedings (see question 33). In the absence of regulation of the late interest rate in the licence agreement, general civil law provides for an interest rate 8% higher than the basic interest rate, compared to 5% for consumer contracts (Article 288 of the BGB). With regard to copyright licences, the Bundesgerichtshof decided, in a series of three judgments between 2009 and 2012, that the termination of the licence agreement generally does not lead to the termination of the sub-licences granted by the licensee (case I ZR 153/06, I ZR 70/10 and I ZR 24/11). In this case, the licensee has an appeal against the taker for the assignment of the right to recover outstanding royalty payments from the sublicensings.
Although the Bundesgerichtshof has left the question open, it can be argued that in the event of the expiry of a licence agreement (for example. B if a licence agreement has a limited duration), a sub-licence issued by the licensee also ends because the underlicensed cannot acquire a right of use from the licensee that goes beyond what belongs to the licensee. In the legal sense, licensing involves transferring a positive right of use of the protected invention to third parties. Thus, the patent holder virtually revokes his right to prohibit the use of his invention vis-à-vis the licensee. If the licensee had used the invention without a licence, he would have committed a patent infringement. Article 101 of the TFUE concerns, among other things, horizontal and vertical technology transfer agreements. The TT-BER Regulation (EU) No. 316/2014) provides for certain general exceptions to infringement through a licensing agreement on, for example, patents, know-how and copyright for software.