Optis v Apple (EWHC (Pat), [2023] EWHC 1095 (Ch), 2023)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

Marcus Smith J set the price of a worldwide FRAND licence of Optis’s portfolio for Apple at USD 5.13m a year: Apple must pay up front USD 25.65m for the future licence, running to the expiry of the patents, and USD 30.78m for a release of past infringements from 2017 to 2022, with compound interest at 5% (paras 494, 498, 501 and 502). Every method put forward by the parties was rejected (paras 396, 398, 401 and 411).

The judge priced all the declared essential patents (the Stack) and then apportioned that price pro rata; he preferred a lump sum to an ad valorem rate (paras 456 and 472 to 478).

Facts and procedure

Optis, a licensing entity whose patents originate from Ericsson, LG, Panasonic and Samsung (para 142), had been in discussion with Apple since 2016 (para 325). Its demands rose from 0.6% of the average selling price, capped, in March 2017 to 0.410% when proceedings were issued; Apple offered a USD 35m lump sum in April 2018 (paras 345 and 353). The action was issued on 26 February 2019 (para 352). Trial E follows four technical trials and Trial F (para 185).

The applicable law

The ETSI IPR Policy requires a declaring owner to undertake to grant FRAND licences (para 101). Since Unwired Planet (SC), the owner cannot obtain an injunction against an implementer that undertakes to take the licence settled by the court, which neutralises hold up (paras 228 and 377). Under the rule in Hollington v Hewthorn, the findings of fact of Birss J in Unwired Planet do not bind Apple, which was not a party; only his propositions of law are highly persuasive (para 364).

Question

What are the terms, and first the price, of a worldwide FRAND licence of Optis’s portfolio for Apple (para 35)?

Decision

Scaling from the Unwired Planet rates was rejected, as it imports findings of fact from another trial; the Optis comparables, mostly with small licensees, imply rates for the Stack that no implementer could sustain (paras 396, 398 and 467). Apple’s SSPPU based framework was also rejected: the baseband chipset is indeed the smallest saleable unit, but nothing limits the price of a licence to the Stack to USD 5 per unit (paras 214 to 220). The implementer pays for access to the standard, not for patents taken one by one (paras 228 and 413). Nothing supports treating Optis’s portfolio as better than average (paras 182 and 183).

The Stack is measured on Innography data: 26,600 families, reduced to 22,000 to reflect its growth over time, giving Optis a share of 0.61% with 135 families or 0.38% with 83 families (para 460). Apple’s lump sum licences, concluded with large SEP owners, are more reliable (para 418); their average, adjusted for outliers and a 1% minimum share, gives the annual price of the Stack (para 483), split equally between past and future (paras 485 and 486). Optis’s share, USD 8.235m a year, is reduced to USD 5.13m because Apple needs a licence to part of the portfolio only, the detail being redacted (paras 487 and 494).

The licence is worldwide, draws no distinction between standards and covers all Apple products; it runs to the expiry of the last patent, against five annual payments made up front without discount, and the forward licence starts on 1 January 2023 (paras 495 to 498 and 501). Interest, set provisionally, is compounded with half yearly rests (para 502). The judge rejected both the abuse of dominance alleged against Optis and the hold out alleged against Apple (paras 388 and 392). The matter returns to him for the precise licence terms, the provisional points and costs (para 506).

Key points for practice

• A FRAND price is built by pricing the Stack and then apportioning it by declared families, without any patent by patent quality assessment (paras 409, 433 and 456).
• An ad valorem rate is not FRAND as a matter of principle; for a large implementer, a lump sum specific to that implementer is preferred (paras 430, 477 and 478).
• Licences granted by an owner to small licensees, drawn to an ad valorem rate, say little about the rate due from a large implementer (paras 398 and 470).
• Practical point: the release for the past is paid at the same annual rate as the future licence, with interest, so that hold out does not pay (paras 379, 485 and 500).

Provisions applied

Other provisions

ETSI IPR Policy, clauses 3, 4, 6 and 15

National law

Competition Act 1998, s 18; Civil Procedure Rules, r 35.11

Case law cited

Unwired Planet v Huawei [2017] EWHC 711 (Pat) and [2020] UKSC 37; Hollington v F Hewthorn & Co [1943] KB 587; Land Securities v Westminster City Council [1993] 1 WLR 286; Smith Kline & French (Cimetidine) [1990] RPC 203; ECJ, United Brands v Commission, 27/76; CMA v Flynn Pharma [2020] EWCA Civ 339; Napp Pharmaceutical v Director General of Fair Trading [2002] CAT 1; Humber Oil Terminals v Associated British Ports [2012] EWCA Civ 36; In re Innovatio IP Ventures (N.D. Ill., 2013); Optis v Apple technical trials [2020] EWHC 2746 (Pat), [2021] EWCA Civ 1619, [2021] EWHC 1739 (Pat), [2021] EWHC 3121 (Pat), [2023] EWCA Civ 438 and [2022] EWHC 561 (Pat)

Related decisions

• Optis v Apple, Court of Appeal, 1 May 2025, same proceedings, appeal against this judgment.
• Optis v Apple, Court of Appeal, 27 October 2022, same proceedings, appeal on Trial F.
• Unwired Planet v Huawei, High Court, 5 April 2017, judgment whose findings of fact are not adopted (paras 364 and 396).
• Unwired Planet v Huawei, Supreme Court, 26 August 2020, judgment whose regime neutralises hold up (paras 228 and 377).

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