Sisvel v Xiaomi (Gerechtshof Den Haag, 200.265.385/01, 2020)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Hague Court of Appeal upheld the refusal of an interim injunction against Xiaomi on a Sisvel essential patent. It relied on the balance of interests alone: even assuming the patent valid and infringed and the FRAND defence bound to fail, an injunction would have serious and hard-to-reverse consequences for Xiaomi, whereas the harm to Sisvel, a licensing company, is financial and covered by security. The judgment draws a clear line between the FRAND defence, including the unwilling licensee question, and the assessment proper to interim proceedings.

Facts and procedure

Sisvel holds the Dutch part of EP 1 129 536, acquired from Nokia in 2012 and relating to EGPRS/EDGE data transmission, which it declared to ETSI with a FRAND undertaking on 10 April 2013 (points 2.3 to 2.5). It approached Xiaomi from 2013 to 2015 about a licence (points 2.7 and 2.8). Sisvel sued in the High Court in London on 23 April 2019, seeking among other things a declaration that its MCP pool licence is FRAND; on 30 August 2019 Xiaomi brought two actions in Beijing, one to set a FRAND rate for China and one for abuse of dominance (points 2.12 and 2.13). On 1 August 2019 the interim relief judge of The Hague dismissed the claims for an injunction, recall and destruction (points 3.1 and 3.3). In January 2020 Xiaomi provided escrow security for royalties (point 3.5).

The applicable law

In interim proceedings an injunction depends on a balance of interests (point 4.1, citing HR 15 December 1995, Procter & Gamble v Kimberly Clark). The court tested that approach against Articles 3 and 9 of Directive 2004/48 and Articles 17(2) and 47 of the Charter of Fundamental Rights (points 4.14 and 4.15).

Question

Should an interim injunction based on an essential patent be granted where the balance of interests weighs against the patentee, whatever the provisional view of the FRAND defence?

Decision

The judgment below was upheld (point 5.1). Sisvel’s harm, confined to one patent close to expiry and financial in nature, was covered by Xiaomi’s security (points 4.3 and 4.4), calculated on the royalty Sisvel seeks for the whole MCP portfolio and on Dutch sales over the full life of the patent; whether it is « appropriate » in the Huawei v ZTE sense belongs to the FRAND defence (point 4.6). For Xiaomi, an injunction would mean halting sales and closing its stores, or accepting a worldwide licence covering more than a thousand patents (points 4.7 and 4.8). As interim proceedings allow only a provisional view of a complex dispute, the trial judge might reach a different conclusion (point 4.10). Any unwillingness on Xiaomi’s part goes to the FRAND defence rather than the balance of interests (point 4.12), which weighs against Sisvel even if the patent is assumed valid and infringed and the FRAND defence bound to fail (point 4.13). A damages claim in the main proceedings is an effective remedy under the Directive and the Charter (point 4.15). The subsidiary claims, including an injunction until Xiaomi accepted arbitration, also failed (points 4.18 and 4.19).

Key points for practice

• In Dutch interim proceedings, the balance of interests alone may defeat an injunction on an essential patent, without ruling on validity, infringement or the FRAND defence (point 4.13).
• Escrow security calculated on the royalty the patentee demands weighs heavily in the implementer’s favour (points 4.4 to 4.6).
• The unwilling licensee argument raised by the patentee belongs to the FRAND defence and does not decide the interim application (point 4.12).
• Practical point: a patentee whose business is licensing should expect, in the Netherlands, to be sent to the main proceedings where the implementer has posted adequate security.

Provisions applied

Directive 2004/48/EC

Arts 3 and 9(1)(a), recital 22

Charter of Fundamental Rights of the European Union

Arts 17(2) and 47

National law

Art. 1019h Rv

Case law cited

CJEU, Huawei v ZTE (C-170/13); HR 15 December 1995, Procter & Gamble v Kimberly Clark; HR 4 June 1993, Vredo v Veenhuis; OLG Düsseldorf, 30 March 2017

Related decisions

• OLG Düsseldorf, 30 March 2017, noted by the court as finding that Sisvel had not acted FRAND towards a third party.
• Huawei v ZTE, 16 July 2015, appropriate security test left open.

Prepared by Dhenne Avocats from the text of the decision (rechtspraak.nl open data service), consulted on 11 October 2026. Only the official text is authoritative.