InterDigital v Lenovo (EWHC (Pat), [2023] EWHC 539 (Pat), 2023)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

Mellor J set at USD 138.7m the lump sum payable by Lenovo for a worldwide FRAND licence of InterDigital’s SEP portfolio covering sales from 2007 to 31 December 2023, based on a rate of USD 0.175 per cellular unit (paras 813, 814 and 944). Neither InterDigital’s 5G Extended Offer nor Lenovo’s Lump Sum Offer was FRAND (para 946).

The judgment applies the comparable licences method and draws principles from it: what matters is the sum actually paid divided by the units covered, the 60% to 80% volume discounts granted to the largest licensees are discriminatory, and a willing licensee pays for all past sales irrespective of limitation periods (paras 495, 528 and 565).

Facts and procedure

The dispute concerns the terms on which Lenovo should take a licence of InterDigital’s portfolio (para 4), which comprised some 28,000 patents and applications at 31 December 2020 (para 115). The parties had negotiated since 2008; InterDigital made fourteen offers and Lenovo two (para 154). The action, issued on 27 August 2019 (para 156), comprises five technical trials and this FRAND trial (para 4); in Trial A, EP558 was found valid, essential and infringed (para 225). InterDigital’s expert values the 5G Extended Offer at USD 337m (para 22); Lenovo offers USD 80m, plus or minus 15% (para 26).

The applicable law

Clause 6.1 of the ETSI IPR Policy, governed by French law, is construed in the light of the Unwired Planet and Optis v Apple judgments, whose findings of French law the judge adopts (paras 170 to 173 and 184). More than one set of terms may be FRAND (paras 176 and 317). The judge also relies on the ETSI Guide: an impartial and honest negotiation despite NDAs, and a financial contingency made by the implementer (paras 199 to 203).

Question

What are the FRAND terms of a worldwide licence of InterDigital’s portfolio for Lenovo, and what follows from the parties’ conduct, in particular for the injunction sought (para 6)?

Decision

The twenty licences relied on by InterDigital, granted to far smaller licensees, were rejected; among the seven lump sum licences with the largest manufacturers, LG 2017 is the best comparable (paras 609 to 611 and 794). The judge started from the USD 0.24 per unit rate derived from LG 2017 for past and future sales combined, applied a 0.728 ratio reflecting the weight of emerging markets in Lenovo’s sales, and reached USD 0.175, applied uniformly from 2007 to 2023 (paras 807 to 814). The top-down cross-check, including the hedonic regression, was rejected (paras 872 and 881).

InterDigital’s accounting allocations between past and future sales were set aside in favour of a single rate (paras 422 and 423). Volume discounts of 60% to 80% have no economic justification; only discounts reflecting the time value of money are consistent with FRAND (paras 495 and 519). Limitation periods have no role in the relationship between a willing licensor and a willing licensee (paras 528 and 529); interest was left for further submissions (para 552).

By consistently seeking supra-FRAND rates, InterDigital did not act as a willing licensor (para 928); Lenovo at times dragged its heels but for the most part acted as a willing licensee, although it failed to commit after Trial A (paras 931 to 934). A FRAND injunction should have been granted at the latest at the hearing following Trial A (para 940); on 6 March 2023 Lenovo undertook to enter into the settled licence (para 957).

Key points for practice

• For a large implementer, lump sum licences with major manufacturers are the best comparables; those with small licensees, more exposed to the fear of litigation costs, are rejected (paras 288 and 609).
• The rate is derived from the sum paid and the number of units, irrespective of the licensor’s internal justifications and accounting treatment (paras 426 and 565).
• Very large volume discounts are discriminatory, though not every volume discount is excluded (paras 495 and 507).
• Practical point: the implementer must pay for all past sales at the FRAND rate, and a licensor that withholds the information a willing licensee needs to evaluate its offer does not act as a willing licensor (paras 202, 529 and 928).

Provisions applied

Other provisions

ETSI IPR Policy, clause 6.1; ETSI Guide on IPRs, sections 4.1, 4.4 and 4.5; ETSI FAQs

National law

French law (clause 6.1 of the ETSI IPR Policy, stipulation pour autrui); Limitation Act 1980, ss 2 and 5; Civil Evidence Act 1972, s 4(2)

Case law cited

Unwired Planet v Huawei [2017] EWHC 711 (Pat), [2018] EWCA Civ 2344 and [2020] UKSC 37; Optis v Apple [2021] EWHC 2564 (Pat) and [2022] EWCA Civ 1411; InterDigital v Lenovo [2021] EWHC 3401 (Pat), [2023] EWCA Civ 34 and [2023] EWCA Civ 105; CJEU, Huawei v ZTE, C-170/13; TCL v Ericsson (C.D. Cal., 2017) and 943 F.3d 1360 (Fed. Cir. 2019); Ericsson v D-Link, 773 F.3d 1201 (Fed. Cir. 2014); HTC v Ericsson (E.D. Tex., 2018); Huawei v InterDigital (Guangdong, 2013); OPPO v Sharp (Supreme People’s Court of China, 2021); Huawei v Conversant (Nanjing, 2018); Senate Electrical Wholesalers v Alcatel [1998] EWCA Civ 3534

Related decisions

• InterDigital v Lenovo, Court of Appeal, 12 July 2024, same proceedings, appeal judgment.
• Unwired Planet v Huawei, High Court, 5 April 2017, judgment whose approach is followed (paras 42 and 244).
• Unwired Planet v Huawei, Supreme Court, 26 August 2020, judgment cited on the purpose of the ETSI Policy (paras 177 to 179).
• Optis v Apple, Court of Appeal, 27 October 2022, judgment followed on the undertaking to take the settled licence (paras 194 and 195).

Prepared by Dhenne Avocats from the text of the decision (National Archives, redacted public version), consulted on 11 October 2026. Only the official text is authoritative.