Compulsory licenses and abusive behavior

The upper district court in Düsseldorf has published an interesting decision (I2 U 92/10) in preliminary injunction procedure. The defendant had argued that the patentee abused his position dominating the market such that a compulsory licence to the patent would have to be granted - with the consequence that the cease and desist claim of the patentee would not be enforcible by referring to the "Microsoft" judgement of the European Court.

However the Upper District Court holds that the "exceptional circumstances" required in EuGH, GRUR 2004, 524 Rdnr. 38 – IMS/Health.

The cummulative preconditions for a claim for compulsory license are

(1) the desired use of the patent is unavoidable in the sense that even major efforts do not lead to a real or realistic potential substitute for the invention,
(2) the party seeking for the license plans to offer new products or services not being offered by the owner of the protective right and which will potentially be requested by the customers,
(3) the refusal of the license is not justified by substantial reasons, and
(4) the refusal leads to an exclusion of any competition on a derived (neighboring) market.

As far as I know, nobody has ever been successful in turning the "Orange Book" caselaw into a succesful defense in a patent infringement procedure.