Unwired Planet v Huawei (EWHC (Pat), [2017] EWHC 711 (Pat), 2017)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

Following the non-technical trial, Birss J settled the FRAND terms of a licence of Unwired Planet’s SEP portfolio and held that, for that portfolio and an implementer such as Huawei, only a worldwide licence is FRAND (para 572). The benchmark rate is 0.062% for 4G multimode handsets and 0.072% for 4G infrastructure; none of the parties’ offers was FRAND (paras 522 and 807). Since Huawei refused the worldwide licence so determined, a final injunction should be granted on the two patents found valid and infringed (paras 793 and 807).

The judgment also lays down principles: the ETSI FRAND undertaking is enforceable by any implementer as a matter of French law, there is only one set of FRAND terms in a given set of circumstances, and a benchmark rate based on the value of the portfolio satisfies the non-discrimination limb (para 806).

Facts and procedure

Unwired Planet holds a worldwide portfolio including patents declared essential to the 2G, 3G and 4G standards, mostly acquired from Ericsson (para 1). The action, brought in March 2014 against Huawei, Samsung and Google on six UK patents, was managed as technical trials followed by a non-technical trial (paras 1 to 3); two patents were found valid and essential, and Google and then Samsung settled (paras 9 and 10). In July 2014 Unwired Planet offered a worldwide SEP licence at 0.2% for LTE and 0.1% for other standards (para 5), reduced in August 2016 to 0.13% and 0.065% (para 11). Huawei only offered UK-limited licences, per patent and then, in October 2016, of the UK portfolio (paras 8, 13 and 14).

The applicable law

The ETSI IPR Policy is governed by French law (para 100). The judge examined whether a contract is formed between the declarant and ETSI, and the stipulation pour autrui under Article 1121 of the old Civil Code, restated in Articles 1205 et seq. of the new Code (paras 108 to 146). He set the FRAND requirement against Article 102 TFEU (paras 153 and 627 to 791) and applied Huawei v ZTE to an infringement action seeking an injunction (paras 713 to 755).

Question

What are the FRAND terms of a licence of Unwired Planet’s portfolio, should that licence be worldwide or UK only, and did Unwired Planet abuse its dominant position so as to be refused an injunction (para 24)?

Decision

A proper declaration to ETSI forms a French law contract, and the undertaking is enforceable by implementers as a stipulation pour autrui (paras 122 and 139). There is only one set of FRAND terms in a given situation, and the undertaking is an obligation to enter into a FRAND licence, not merely to make offers (paras 159 and 164). The rate was set from comparables: the value of Ericsson’s portfolio (0.80% for 4G, 0.67% for 2G and 3G) was scaled by the relative strength of Unwired Planet’s portfolio (7.69% for 4G), giving 0.062% for 4G handsets; the top-down approach served as a cross-check, with an implied aggregate burden of 8.8% (paras 464 to 476). A benchmark rate available to all licensees satisfies non-discrimination; Huawei could not claim the lower rate granted to Samsung, as no distortion of competition was established (paras 503 and 518 to 521).

Willing and reasonable parties would agree a worldwide licence, which is not contrary to competition law (paras 543 and 572). In that licence the rate is halved for China and scaled to the Relevant SEPs held there, the same rate applying in other markets; 4G handsets bear 0.052% in major markets (paras 583, 584, 589 and 591). The licence runs from 1 January 2013 to 31 December 2020 (para 593). Unwired Planet is dominant (para 670) but committed no abuse: the action, preceded by contacts, was not premature under Huawei v ZTE, and opening offers of between about one and a half and three times the FRAND rate did not disrupt negotiations (paras 755, 774 and 784).

Key points for practice

• An implementer must commit without qualification to take a licence on the terms found to be FRAND; making its willingness conditional on a UK-only licence exposes it to an injunction (paras 708 and 806).
• A UK-only licence would carry a 100% uplift, reflecting the efficiencies of worldwide licensing (para 602).
• Arbitrated terms and the 2016 Samsung licence, concluded in particular circumstances, were rejected as comparables (paras 409 and 411).
• Practical point: damages for infringement of a SEP are assessed at the FRAND licence rate, not at a per-patent rate (paras 799 and 800).

Provisions applied

Treaty on the Functioning of the European Union

art. 101; art. 102

Other provisions

ETSI IPR Policy, clauses 4.1, 6.1, 6.1bis, 6.2, 8.1, 12 and 15; ETSI Guide on IPRs, art. 3.1.2; Brussels I Regulation, art. 22(4)

National law

French Civil Code, former arts 1108, 1121 and 1165, new arts 1101, 1128 and 1205 to 1209; French Intellectual Property Code, art. L. 613-8; Competition Act 1998, s 18; Patents Act 1977, s 60(5)(a)

Case law cited

CJEU, Huawei v ZTE, C-170/13; ECJ, United Brands, 27/76; ECJ, British Airways v Commission, C-95/04; ECJ, GAT v LuK, C-4/03; CFI, Microsoft v Commission, T-201/04; European Commission, Motorola, AT.39985; BGH, Orange-Book-Standard, KZR 39/06; Unwired Planet v Huawei [2016] EWCA Civ 489; Vringo v ZTE [2013] EWHC 1591 (Pat) and [2015] EWHC 214 (Pat); Attheraces v British Horseracing Board [2007] ECC 7; General Tire v Firestone [1975] 1 WLR 819; Smith Kline & French (Cimetidine) [1990] RPC 203; Microsoft v Motorola (W.D. Wash., 2013); Ericsson v D-Link, 773 F.3d 1201 (Fed. Cir. 2014); Huawei v InterDigital (Guangdong, 2013); Apple v Samsung (IP High Court, Japan, 2014)

Related decisions

• Unwired Planet v Huawei, Supreme Court, 26 August 2020, same proceedings, judgment on the further appeal.
• Huawei v ZTE, CJEU, 16 July 2015, judgment from which the principles are derived (para 744).
• Motorola, European Commission, 29 April 2014, decision whose reasoning on a national licence is not followed (para 552).
• Orange-Book-Standard, BGH, 6 May 2009, judgment discussed in the analysis of Huawei v ZTE (para 717).

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