Tesla v InterDigital and Avanci (UKSC, [2026] UKSC 27, 2026)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Supreme Court, unanimously, in a judgment given by Lord Hamblen and Lord Kitchin, allowed Tesla’s appeal (para 220) against the Court of Appeal. It held that there is a serious issue to be tried on the claims for declarations that the royalty for the Avanci 5G Platform licence is not FRAND and for a determination of FRAND terms (para 145), that those claims relate to InterDigital’s UK SEPs (para 177), and that the Delaware Court of Chancery is not an available forum (para 216).

The judgment therefore allows an implementer to have the English court review the rate of a pool or platform licence offered by an agent on behalf of many SEP owners, failing which the FRAND obligation would lose its effectiveness (para 138).

Facts and procedure

Tesla wishes to sell 5G-enabled vehicles in the UK (para 41). Avanci owns no patents, has given no FRAND undertaking, operates the platform as agent for the SEP owners and may only license all the SEPs on it (paras 30 to 33). By 2024 more than 65 SEP owners, including InterDigital, had joined, owning some 170,000 declared SEPs, about 7% of them UK SEPs (para 35). Tesla considers the rate of USD 32 per vehicle too high (paras 42 and 136).

In December 2023 Tesla sought the revocation of three InterDigital UK patents and declarations as to FRAND terms (para 42). Fancourt J struck out the Licensing Claims (para 53); the Court of Appeal, Arnold LJ dissenting, dismissed the appeal (para 58).

The applicable law

The FRAND obligation arises from the declaration made to ETSI under clause 6.1 of its IPR Policy, a French law contract for the benefit of third parties (stipulation pour autrui) enforceable by implementers (paras 15 and 19). The power to grant declarations rests on section 19 of the Senior Courts Act 1981 and CPR r 40.20 (para 110). Service out requires, among other things, a serious issue to be tried (para 64); service on IDPH within the jurisdiction relied on CPR r 63.14(2) (para 180).

Question

Can an implementer ask the English court to declare that the royalty for a platform licence offered by an agent on behalf of several SEP owners is not FRAND and to determine FRAND terms, and does the English court have jurisdiction to hear such a claim (paras 3 to 6)?

Decision

Nothing in the FRAND obligation or the IPR Policy causes it to cease to apply where owners license through a common agent; the aim of preventing hold-up applies with as much if not more force to joint offers (paras 83 to 86). The Court rejected the proposition that every offer must be FRAND (para 94), but held that Tesla has a real prospect of establishing that the only FRAND licence of InterDigital’s UK SEPs is a global platform licence at a FRAND rate (paras 95 to 103).

A declaration may be granted even where the rights in question are not vested in any party, provided it serves a useful purpose and does not unfairly prejudice persons not before the court (para 125); the case is distinguishable from Vestel, where no right to a FRAND licence was asserted (para 133). Tesla has a real prospect of obtaining the declarations against InterDigital and Avanci, and a legitimate interest in doing so (paras 131 to 139). Joinder of all SEP owners is not required at this stage, Avanci being the essential party (para 142). The alternative claim to a bilateral licence of InterDigital’s global portfolio is embraced by the pleadings (para 150).

On jurisdiction, the claims relate principally to InterDigital’s UK SEPs on the platform (para 177), following the Vestel line of authority (para 174). Service on IDPH under CPR r 63.14(2) was valid (paras 187 to 189), IDH is a necessary or proper party under Gateway 3 (para 193), Gateway 11 would also be available (para 200), and there is no ground for a discretionary refusal (para 219).

Key points for practice

• Joining a pool or platform does not release a SEP owner from its FRAND undertaking to ETSI (paras 84 and 89).
• Commercial practice, including the impracticality of negotiating some 7,500 bilateral licences, may lead to the conclusion that only a platform licence is FRAND (paras 97 and 98).
• An agent bound by no FRAND undertaking remains the essential party to the debate on the platform rate (paras 134 and 142).
• Practical point: an implementer challenging a pool rate should anchor its claim in the UK SEPs and FRAND undertaking of an identified SEP owner and, if need be in the alternative, plead a claim to a bilateral licence in clear terms (paras 150 and 176).

Provisions applied

Treaty on the Functioning of the European Union

art. 101, through the reference to the Commission Guidelines on technology transfer agreements (2014/C 89/03), para 261(e) (para 86)

Other provisions

ETSI IPR Policy, clauses 4.1, 6.1, 6.1bis and 15

National law

Senior Courts Act 1981, s 19; Civil Procedure Rules, r 19.8, r 40.20, r 63.1 and r 63.14(2); CPR PD 6B, para 3.1(3) and (11) (Gateways 3 and 11)

Case law cited

Unwired Planet v Huawei [2020] UKSC 37; Unwired Planet v Huawei [2017] EWHC 2988 (Pat); Vestel v Access Advance [2021] EWCA Civ 440; Acer v Nokia [2026] EWCA Civ 564; Lenovo v Ericsson [2025] EWCA Civ 182; Nokia v OnePlus [2022] EWCA Civ 947; Lenovo v InterDigital [2024] EWHC 1036 (Pat); Mitsubishi Electric v OnePlus [2021] EWHC 1541 (Pat); Alcatel Lucent v Amazon [2024] EWHC 1921 (Pat); Mediatek v Huawei [2025] EWHC 649 (Pat); Warner Bros Discovery v Nokia [2025] EWHC 2888 (Pat); Amazon v InterDigital [2025] EWHC 3334 (Pat); Actavis v Eli Lilly [2013] EWCA Civ 517; Altimo v Kyrgyz Mobil Tel [2011] UKPC 7; Guaranty Trust v Hannay [1915] 2 KB 536; Messier-Dowty v Sabena [2000] 1 WLR 2040; Rolls-Royce v Unite [2009] EWCA Civ 387; Milebush v Tameside [2011] EWCA Civ 270; Tyne and Wear PTE (Nexus) v RMT [2024] UKSC 37; Gouriet v Union of Post Office Workers [1978] AC 435; In re Harrods (Buenos Aires) [1992] Ch 72

Related decisions

• Tesla v InterDigital and Avanci, Court of Appeal, 6 March 2025, same proceedings, judgment reversed.
• Vestel v Access Advance, Court of Appeal, 26 March 2021, distinguished on the merits (para 133) and followed on characterisation (para 174).
• Acer v Nokia, Court of Appeal, 12 May 2026, cited in support of the Vestel line on Gateway 11 (paras 173 and 196).
• Unwired Planet v Huawei, Supreme Court, 26 August 2020, leading authority on the FRAND obligation and global licences (paras 14 and 127).

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