Unwired Planet v Huawei (UKSC, [2020] UKSC 37, 2020)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The UK Supreme Court dismissed the three appeals brought by Huawei and ZTE (para 171). It held that the English courts may, without both parties’ agreement, restrain infringement of a UK standard essential patent unless the implementer takes a global portfolio licence, and may set the FRAND terms of that licence (paras 58 to 64 and 90). The FRAND non-discrimination obligation is « general » rather than a most-favoured licence requirement (paras 112 to 116); Huawei v ZTE imposes no mandatory steps beyond prior notice (paras 149 to 153); and an injunction remains the appropriate remedy (paras 163 to 169). The judgment grounds English jurisdiction over global licences in the contractual nature of the ETSI undertaking.

Facts and procedure

Unwired Planet, a patent licensing company which had acquired a portfolio from Ericsson in 2013, sued Huawei in England on 10 March 2014 (paras 16 and 19). After technical trials in which two patents were held valid and essential (para 20), Birss J held that a FRAND licence between the parties had to be worldwide, settled its terms and granted an injunction that would cease if Huawei entered into that licence (paras 25 and 28); the Court of Appeal affirmed (para 29). In the Conversant cases, involving a portfolio acquired from Nokia, Henry Carr J and then the Court of Appeal rejected Huawei’s and ZTE’s challenges to jurisdiction and on forum non conveniens, which relied on the Chinese courts (paras 17, 30 and 33).

The applicable law

The ETSI IPR Policy, governed by French law, creates a stipulation pour autrui for the benefit of implementers; it balances prevention of hold-up (clause 3.1) and of hold-out (clause 3.2) (paras 7 to 14). Validity and infringement of a national patent fall within the exclusive jurisdiction of the granting state; it is the contract created by the ETSI policy that gives the court jurisdiction to determine a portfolio licence (para 58). Article 102 TFEU and Huawei v ZTE govern injunction claims by SEP owners (paras 128 to 143).

Question

May the English court make the refusal of an injunction conditional on a global licence and settle its terms, is England the appropriate forum, what does non-discrimination require, and is an injunction barred by Article 102 TFEU or to be replaced by damages (para 1)?

Decision

The ETSI policy does not deprive the SEP owner of injunctive relief: the possibility of an injunction gives the implementer an incentive to accept FRAND terms (para 61). The court does not rule on the validity of foreign patents; it draws on commercial practice in portfolio licensing (paras 62 and 63). An implementer may, in appropriate cases, reserve the right to challenge particular foreign patents with royalty adjustment (para 64). Foreign case law does not show the English approach to be out of line (para 84). The forum non conveniens challenge failed for want of another competent forum, since the Chinese courts could not at present settle a global licence without the parties’ agreement (paras 96 to 98). Non-discrimination requires a single royalty price list reflecting the value of the portfolio, not alignment on the most favourable licence, which ETSI deliberately dropped in 1994 (paras 113 to 118); the more favourable Samsung licence therefore did not bind Unwired (para 112). Under Article 102 TFEU, only prior notice is mandatory, its form depending on the circumstances, and the other Huawei v ZTE steps form a safe harbour (paras 150 to 153); Unwired, willing to accept the terms set by the court, had not acted abusively (para 158). Finally, damages would not be an adequate substitute for an injunction, given that enforcement country by country is impractical (paras 164 to 169).

Key points for practice

• An implementer refusing the worldwide licence found to be FRAND faces an injunction in the UK market (paras 61 and 90).
• A more favourable licence granted to a third party does not, on its own, establish discrimination (paras 114 and 125).
• The absence of an offer matching the terms ultimately set by the court does not make the claim abusive (para 158).
• Practical point: an implementer must commit unconditionally to take whatever licence the court finds FRAND, or it cannot effectively accuse the SEP owner of abuse (paras 145 and 158).

Provisions applied

Treaty on the Functioning of the European Union

Art. 102

Regulation (EU) No 1215/2012

Art. 24

ETSI IPR Policy

clauses 3.1, 3.2, 4.1, 4.3, 6.1, 6.1bis, 6.2, 6.3, 6bis, 8.1, 8.2 and 15(6)

National law

Senior Courts Act 1981, s 50

Case law cited

CJEU, Huawei v ZTE, C-170/13; CJEU, Owusu v Jackson, C-281/02; European Commission, Motorola, AT.39985; Lungowe v Vedanta [2019] UKSC 20; eBay v MercExchange, 547 US 388 (2006); Microsoft v Motorola, 696 F 3d 872 (9th Cir 2012); TCL v Ericsson (C.D. Cal. 2017); Apple v Qualcomm (S.D. Cal.); Pioneer v Acer, LG Mannheim, 7 O 96/14; St Lawrence v Vodafone, LG Düsseldorf, 4a O 73/14; Huawei v InterDigital (Guangdong High People’s Court); Samsung v Apple Japan, IP High Court, 2013 (Ne) 10043

Related decisions

• Unwired Planet v Huawei, High Court (Patents Court), 5 April 2017, the judgment of Birss J upheld on appeal.
• Huawei v ZTE, CJEU, 16 July 2015, the judgment interpreted by the Court.
• Motorola, European Commission, 29 April 2014, considered among foreign practice.
• Samsung v Apple Japan, IP High Court (Japan), 2014, considered among foreign case law.

Prepared by Dhenne Avocats from the text of the decision (UK Supreme Court website), consulted on 11 October 2026. Only the official text is authoritative.