Samsung v ZTE (EWHC (Pat), [2026] EWHC 999 (Pat), 2026)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

Following the FRAND trial, Meade J set at $392m the lump sum payable by Samsung under the global cross-licence renewing its 2021 agreement with ZTE (paras 48 and 576). He rejected Samsung’s licences with Ericsson, Nokia and InterDigital, adopted the 2020 ZTE-Apple licence as the sole comparable and adjusted it for the « non-FRAND factors » which had depressed it: US sanctions, the need for cash, the first licence and ZTE’s weakness on 5G (paras 28 to 45). The judgment clarifies how comparables are selected and adjusted, and settles a number of unpacking parameters.

Facts and procedure

Samsung and ZTE were parties to a 2021 cross-licence which expired at the end of 2023, followed by a covenant not to sue for 2024 (paras 2 and 51). Samsung sued in the Patents Court on 19 December 2024 and undertook to enter into the court-determined licence; ZTE did not, and instead brought proceedings in the Chongqing Court, which held its own FRAND trial (paras 4, 5, 8, 52 and 53). Parallel proceedings were pending in Munich, before the Mannheim local division of the UPC, in Brazil and in the United States (paras 66 to 81). The interim licence declaration granted by Mellor J was set aside on appeal on 31 October 2025 (paras 55 and 57). Samsung, the net payer, contended for no more than $200m; ZTE sought $731m (paras 3 and 21).

The applicable law

The judge applied clause 6.1 of the ETSI IPR Policy and the principles laid down in particular by the Supreme Court in Unwired Planet and by the Court of Appeal in InterDigital v Lenovo and Optis v Apple (paras 87 to 102). The non-discrimination limb of FRAND concerns similarly situated implementers (para 93). The SEP holder’s own licences are the starting point, but not conclusive (para 98). The burden of proof plays no part in the overall selection of comparables, save as to a specific fact which the court cannot otherwise determine (para 308). The patentee’s entitlement to the top of the FRAND range does not mean that its position must be preferred at every stage of the calculation (paras 107 to 110).

Question

Which comparables should be used to set FRAND terms for the cross-licence, and how should a licence granted by the SEP holder under the influence of factors unrelated to the value of its portfolio be adjusted?

Decision

Samsung’s licences with Ericsson, Nokia and InterDigital were rejected: those portfolios differ too much from ZTE’s, which is newer, China-centric and without battle-tested patents, and the threat of injunctions very probably inflated those rates (paras 28, 301 and 347). Samsung’s other licences vary too widely to disclose a market rate (paras 29 and 376). As between the 2021 licence and the 2020 ZTE-Apple licence, the judge preferred the latter, as less affected and fully covering 5G (para 41). He uplifted it by 21% for the first licence discount (12.5%) and 5G (5%), and applied an 80% discount on past sales (paras 561 to 563). He adopted the dollar per unit approach, Counterpoint forecasts, the Chongqing Court’s multimode weightings, 5% interest and payment for all past sales (paras 565 to 572). ZTE’s top-down cross-check was rejected as excessively sensitive to its assumptions (paras 49 and 529). Samsung’s non-royalty terms were adopted (para 554).

Key points for practice

• The judge described factors distorting a comparable as « non-FRAND », without implying any unlawful conduct (paras 37 and 92).
• The injunction leverage of the most litigious licensors may disqualify their licences as comparables for a different portfolio (paras 345 to 347 and 374).
• The SEP holder may choose between FRAND structures in a cross-licence, but a late and unexplained change of position was held to be tactical (paras 546 to 551).
• Practical point: evidence of the negotiation history, from witnesses and documents, enabled the non-FRAND factors affecting the chosen comparable to be established and quantified (paras 175 to 233 and 561 to 564).

Relevance before the UPC

The judge noted the experts’ shared perception that injunctions could be obtained swiftly, most notably in Germany, and took it into account in assessing the comparables (paras 125 and 345); parallel proceedings between the parties were pending before the Mannheim local division (paras 72 and 73).

Provisions applied

ETSI IPR Policy

clause 6.1

Case law cited

Unwired Planet v Huawei [2017] EWHC 711 (Pat) and [2020] UKSC 37; InterDigital v Lenovo [2023] EWHC 539 (Pat) and [2024] EWCA Civ 743; Optis v Apple [2023] EWHC 1095 (Ch) and [2025] EWCA Civ 552; Lenovo v Ericsson [2025] EWCA Civ 182; Samsung v ZTE [2025] EWCA Civ 1383; CJEU, Huawei v ZTE, C-170/13; Smith Kline & French (Cimetidine) [1990] RPC 203; Chongqing Court, Nokia v Oppo; Royal Mail v Efobi [2021] UKSC 33

Related decisions

• Samsung v ZTE, Court of Appeal, 31 October 2025, the appeal in the same dispute, setting aside the interim licence declaration.
• InterDigital v Lenovo, Court of Appeal, 12 July 2024, cited on comparables, burden of proof and past sales.
• Optis v Apple, Court of Appeal, 1 May 2025, cited on the selection of comparables and non-FRAND factors.
• Unwired Planet v Huawei, High Court, 5 April 2017, the first English FRAND determination, cited on comparables.

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