Vestel v Access Advance (EWCA, [2021] EWCA Civ 440, 2021)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal upheld the finding that the English court lacked jurisdiction over Vestel’s claim for declarations that the HEVC Advance pool licence was not FRAND and that its own counter-offer was. Because Vestel asserted no legally enforceable right to a FRAND licence, its declarations could not be brought within any jurisdictional gateway. The judgment confirms that a claim to have FRAND terms determined must rest on an identified right.

Facts and procedure

Vestel, a Turkish television manufacturer, implements the HEVC (H.265) video compression standard. Access Advance administers the HEVC Advance pool but owns no patents; Philips, a Dutch company, has declared patents essential to the standard and is a pool member. Vestel considered the worldwide royalty of USD 1.33 per unit excessive (paras 3 to 7). It first sued for abuse of dominance under Article 102 TFEU and section 18 of the Competition Act 1998 (paras 8 to 10). On 16 December 2019, HHJ Hacon (Patents Court) set aside service out of the jurisdiction and declined jurisdiction (paras 1 and 16 to 21). On appeal Vestel dropped the abuse claim and narrowed its case to three declarations confined to UK-designated patents (paras 28 and 49).

The applicable law

Against Philips, jurisdiction turned on Article 7(2) of Regulation 1215/2012 (matters relating to tort); against Access Advance, a US company, on the gateways in CPR Practice Direction 6B, paragraph 3.1 (gateways 9 and 11), applying the Brownlie test (paras 14, 15 and 18). Vestel also relied on the court’s inherent power to grant declarations (paras 32 and 33).

Question

Can an implementer obtain from the English court a free-standing declaration on whether a pool licence and its own counter-offer are FRAND, without asserting any right to that licence?

Decision

The appeal was dismissed (paras 80 to 83). The court noted that Vestel claimed no legally enforceable right to a FRAND licence and that this omission was deliberate (paras 34, 51 and 52). The jurisdiction exercised in Unwired Planet rests on the contractual undertaking to ETSI, which the implementer can enforce (paras 44 to 46). The declarations sought were not declarations of non-liability in tort: Vestel was likened to a trespasser with no right to enter (para 53). Article 7(2) and gateway 9 were therefore not satisfied (paras 54 to 58). As to gateway 11, UK designations of European patents are property within the jurisdiction, but a claim asserting no right could not come within it (paras 62 and 69 to 72). Pfizer v Roche did not assist: there is no such thing as a free-standing FRAND claim, and the claim had no real prospect of success (paras 76 to 79). The court added that a claim based on a right not to be injuncted would have fallen within Article 7(2) and gateway 9 (para 60).

Key points for practice

• The English court does not set FRAND terms in the abstract: the claim must identify the legal source of the FRAND obligation and the right it confers on the implementer (paras 44 to 48 and 78).
• A pool administrator that owns no patents is not, as such, a putative infringer, which closes the route of a negative tort declaration against it (para 58).
• Practical point: an implementer wishing to bring a pool dispute before the English court should plead a right to a licence from the outset, for instance under the standards body’s IPR policy, rather than a bare request for declarations.

Provisions applied

Treaty on the Functioning of the European Union

Art. 102 (claim abandoned on appeal)

Regulation (EU) No 1215/2012

Arts 4(1) and 7(2)

National law

Competition Act 1998, section 18; Civil Procedure Rules, Practice Direction 6B, para 3.1 (gateways 3, 4A, 9 and 11)

Case law cited

Unwired Planet v Huawei [2020] UKSC 37; Huawei v ZTE (C-170/13); Folien Fischer (C-133/11); Brownlie [2017] UKSC 80; Conversant v Huawei [2018] EWHC 808 (Pat); Fujifilm v AbbVie [2017] EWCA Civ 1; Pfizer v Hoffmann-La Roche [2019] EWHC 1520 (Pat)

Related decisions

• Unwired Planet v Huawei, 26 August 2020, contractual basis of FRAND jurisdiction relied on by the court.
• Huawei v ZTE, 16 July 2015, CJEU judgment cited by the court.

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