Intex v Ericsson (Delhi High Court, FAO(OS)(COMM) 296/2018, 2023)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

On appeal from an interim order, the Delhi High Court upheld the finding that Intex prima facie infringed eight Ericsson standard essential patents and was an « intentional unwilling licensee », and, allowing Ericsson’s cross-appeal, ordered Intex to pay the entire royalty amount in cash within four weeks, instead of 50% in cash and 50% by bank guarantee (paras 149 to 151).

The judgment rejects the four-fold test in Nokia v Oppo, which made any interim payment depend on a near-complete showing, and confirms that injunctions and interim payment orders are available against an implementer that does not want a licence (paras 91 and 113 to 117).

Facts and procedure

In the course of negotiations lasting some five years, Intex complained to the Competition Commission of India and filed revocation petitions before the IPAB, without ever countering Ericsson’s claim charts with its own (paras 3, 120 and 125). Ericsson sued for infringement. On 13 March 2015 the single judge found validity, essentiality and infringement made out prima facie, rejected a chipset-based royalty and, by a modification order of 26 March 2015, required payment of 50% of the royalties and a bank guarantee for the balance (paras 3 and 4). Both parties appealed.

The applicable law

The Patents Act 1970 does not mention standard essential patents, but the court’s case law and its 2022 Rules Governing Patent Suits recognise them and allow payment orders from the first hearing (paras 74, 75 and 116). The FRAND declaration is a contractual commitment construed under the standard-setting organisation’s policy (para 58). The court drew on Huawei v ZTE and Unwired Planet to define the parties’ reciprocal obligations (paras 66 to 73 and 112).

Question

On what conditions, and on what terms, may the court order the implementer of a standard essential patent to pay royalties at the interim stage?

Decision

FRAND imposes obligations on both sides: the implementer has no right of silence, may base a counter-offer on its own licences, as the Hague Court of Appeal held in Philips v Wiko, and must provide security; conduct during negotiations is key to assessing willingness (paras 70 to 73). The patentee may seek an interim or final injunction against an unwilling implementer (para 91). Infringement is shown by mapping the patent to the standard and the product to the standard, and infringement of a single patent suffices to restrain sales of the product (paras 93 to 98 and 103). A global portfolio licence can be FRAND (para 111).

The Nokia v Oppo test places an excessive burden on the patentee at the interim stage and would deprive SEP suits of interim relief altogether; it is contrary to law (paras 113 to 117). At the interim stage the court assesses prima facie infringement, the implementer’s unwillingness or whether the terms are FRAND, judged by what similar implementers pay (para 118).

Here essentiality and infringement followed from Intex’s admissions in its complaint to the Competition Commission and from an internal email of 13 August 2012 asking whether Ericsson’s technology could be disabled (paras 119 to 128). A pending revocation petition is not in itself a credible challenge to validity, and it is counter-intuitive to allege abuse of dominance while claiming the patents are invalid (paras 129 to 138). The challenges under sections 8 and 3(k) of the Patents Act failed (paras 139 to 148). More than one hundred licences granted by Ericsson justified full payment, for parity with other implementers (para 150).

Key points for practice

• The implementer must answer an offer with a substantiated counter-offer, if need be based on its own licences, and provide security (paras 70 and 72).
• Pleadings before the competition authority may amount to admissions of essentiality and use (paras 119, 121 and 126).
• A validity challenge must be credible and substantiated; a pending revocation petition is not enough (paras 129 and 138).
• Practical point: before the Delhi High Court, an implementer found unwilling may be ordered to pay all past royalties in full at the interim stage (paras 150 and 151).

Provisions applied

Treaty on the Functioning of the European Union

Art. 102 (cited through Huawei v ZTE)

National law

Indian Patents Act 1970, sections 3(k), 8, 13(4), 48, 64(1)(j) and (m), 104A, 105, 106 and 107; Indian Code of Civil Procedure 1908, Order XXXIX, Rules 1, 2 and 10; Delhi High Court Rules Governing Patent Suits, 2022; Telecom Regulatory Authority of India Act 1997, sections 11 and 36

Other texts

ETSI Intellectual Property Rights Policy, clauses 3, 6.1, 6.2, 15(6) and 15(11); Common Patent Policy for ITU-T/ITU-R/ISO/IEC

Case law cited

CJEU, Huawei v ZTE, C-170/13; Unwired Planet v Huawei [2020] UKSC 37 and [2017] EWHC 2988 (Pat); Optis v Apple [2022] EWCA Civ 1411; InterDigital v Lenovo [2023] EWHC 539 (Pat); Hague Court of Appeal, Philips v Wiko, 200.219.487/01, 2 July 2019, and Philips v Asus, 200.221.250/01, 7 May 2019; Düsseldorf Regional Court, Tagivan v Huawei, 4a O 17/17; Apple v Motorola, 757 F.3d 1286 (Fed. Cir. 2014); Fujitsu v Netgear, 620 F.3d 1321; Nokia v Oppo, 2022 SCC OnLine Del 4014; Wander v Antox, 1990 (Supp.) SCC 727; Merck Sharp & Dohme v Glenmark, 2015 SCC OnLine Del 8227; F. Hoffmann-La Roche v Cipla, 2009 SCC OnLine Del 1074

Related decisions

• Huawei v ZTE, Court of Justice of the European Union, 16 July 2015, the negotiation framework adopted by the court (paras 66 and 80).
• Unwired Planet v Huawei, UK Supreme Court, 26 August 2020, relied on against the Nokia v Oppo test (paras 112 and 113).
• Philips v Wiko, Hague Court of Appeal, 2 July 2019, followed on counter-offers based on the implementer’s own licences (paras 70 and 71).
• InterDigital v Lenovo, High Court, 16 March 2023, distinguished as specific to English practice (paras 86 to 88).

Prepared by Dhenne Avocats from the text of the decision (WIPO Lex, English text of the judgment), consulted on 11 October 2026. Only the official text is authoritative.