FRAND at the UPC: What the Court Has Decided, What Remains Open

The Unified Patent Court was meant to become the natural forum for disputes over standard-essential patents. Three years after it opened, it has handed down a first decision on a FRAND defence, but the question that drives party strategy, whether it can set a royalty rate, is still unanswered. Meanwhile London, Beijing and Washington remain seised.

What the UPC has actually decided

In Panasonic v Oppo, the Mannheim Local Division handed down on 22 November 2024 the Court's first decision on a FRAND defence (UPC_CFI_210/2023). It dismissed Oppo's counterclaim, found Panasonic's offer compliant and granted an injunction covering several States. Its reading of Huawei v ZTE (CJEU, 16 July 2015, C-170/13) treats FRAND as a corridor of acceptable terms rather than a single rate, and requires the implementer to show a genuine willingness to negotiate.

The decision therefore rules on a defence, not on a licence. It sets no global rate and says nothing about whether the Court could set one.

Jurisdiction to set a rate remains open

The question is now squarely before the Court. In Sun Patent Trust c. Vivo, the Paris Local Division has before it claims for the determination of a FRAND rate (UPC_CFI_361/2025 and UPC_CFI_362/2025) and chose to examine its jurisdiction with the merits rather than as a preliminary matter. By order of 16 March 2026 (UPC_CoA_904/2025 and UPC_CoA_905/2025), the Court of Appeal endorsed that procedural choice: deferring a preliminary objection to the main proceedings is part of case management and is not reserved to the judge-rapporteur.

In other words, the Court of Appeal did not hold that the UPC may set a rate; it held that the question will be decided later. Further actions, brought in late 2025 by Ericsson against Transsion before several divisions, raise the same issue. For patent holders and implementers alike, the practical consequence is simple: asking the UPC to set a rate today means accepting a jurisdictional risk.

A European framework clarified by subtraction

On 11 February 2025, the European Commission withdrew its proposed regulation on standard-essential patents, for want of any foreseeable agreement, in its 2025 work programme. The register, the administrative determination of an aggregate rate and mandatory conciliation therefore leave the landscape.

The applicable law reverts to what practitioners know: Huawei v ZTE, Articles 101 and 102 of the Treaty, the commitments given to standard-setting organisations and the contract itself. Clarification by withdrawal strengthens the role of the courts, and with it the weight of the jurisdictional question pending before the UPC.

Other forums have not gone away

The United Kingdom has remained the reference forum for setting a global rate since Unwired Planet v Huawei ([2020] UKSC 37), which leaving the European Union did nothing to change. Chinese courts also set worldwide terms, and anti-suit injunctions remain part of their practice. In the United States, the interplay between the federal courts and the ITC still delivers enforcement pressure that the UPC does not match.

The result is distributed litigation, in which the UPC supplies the injunction over a wide territory while the global licence is negotiated or set elsewhere.

What this means for strategy

For a patent holder, the UPC is today an enforcement tool, effective for obtaining a multi-State injunction, rather than a pricing tool. For an implementer, exposure is prepared upstream: a protective letter, a documented negotiation record, and consistent positions across the courts seised. Finally, arbitration, including before the UPC patent mediation and arbitration centre, remains the only route that produces a global licence binding on both parties without a jurisdictional argument.

Key takeaways

• The UPC's first FRAND decision (Panasonic v Oppo, Mannheim, 22 November 2024) rules on a defence and sets no rate.
• The Court's jurisdiction to determine a FRAND rate is pending before the Paris Local Division in Sun Patent Trust c. Vivo.
• On 16 March 2026 the Court of Appeal only accepted that the question be examined with the merits.
• The proposed EU regulation on standard-essential patents was withdrawn on 11 February 2025.
• Global rates continue to be set in the United Kingdom, in China or through arbitration.

Frequently asked questions

Can the UPC set a global FRAND rate?

The point is undecided. Claims to that effect are pending before the Paris Local Division, and in March 2026 the Court of Appeal accepted that jurisdiction be examined together with the merits.

What does the Panasonic v Oppo decision add?

It applies the framework of Huawei v ZTE treating FRAND as a corridor of acceptable terms and requiring the implementer to show a genuine willingness to negotiate, then grants an injunction covering several States.

Does the withdrawal of the EU SEP Regulation change the applicable law?

It does not change the law in force. It removes a planned register and administrative rate-setting, and leaves the question to the courts and to the contract.

Is arbitration preferable in a FRAND dispute?

Arbitration produces a global licence without any preliminary argument over jurisdiction, which no national court guarantees today. It requires both parties to agree, and that remains the main obstacle.

Dhenne Avocats runs standard-essential patent disputes before the Unified Patent Court and in arbitration, from framing the negotiation to enforcing decisions. Talk to us.

This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on the Kluwer Patent Blog on 23 July 2025: SEP WARS: A New UPC Order?.