FRAND Litigation Watch: decisions analysed
Detailed case notes on non-UPC decisions concerning standard essential patents and FRAND commitments: European national courts, the Court of Justice of the European Union, the European Commission and, for comparison, a few decisions from outside Europe. Each note links to the official text.
61 decisions analysed
- Tesla v InterDigital and Avanci (UKSC, [2026] UKSC 27, 2026)The Supreme Court allowed Tesla's appeal: there is a serious issue to be tried on whether the Avanci 5G Platform licence is FRAND, the claims relate to InterDigital's UK SEPs and the English court has jurisdiction, the Delaware Court of Chancery not being an available forum.
- Acer v Nokia (EWCA, [2026] EWCA Civ 564, 2026)The English court has jurisdiction over Acer's and ASUS's RAND claims under gateway 11, but Nokia's offer of an immediate licence adjustable by an ICC arbitral award is a RAND offer; the claims were stayed and the interim licence declarations discharged.
- Samsung v ZTE (EWHC (Pat), [2026] EWHC 999 (Pat), 2026)The FRAND lump sum payable by Samsung under the global cross-licence is $392m, based on the 2020 ZTE-Apple licence adjusted for non-FRAND factors, Samsung's licences with other licensors being rejected as comparables.
- ZTE v Samsung (LG München I, 7 O 64/25, 2026)With no comparable licence, ZTE's offer is placed within the FRAND corridor by a top-down analysis (USD 170, 8 % aggregate burden, 5.7 % share); the FRAND defence fails and an injunction is granted.
- FRAND-Einwand III (BGH, KZR 10/25, 2026)Huawei v ZTE does not impose a strict order of steps: the implementer must respond promptly to a substantially complete offer, without the court first checking that it is FRAND, and provide consistent security. Absent willingness, the competition law defence and the proportionality objection fail, and no reference is made to the CJEU.
- InterDigital v prospective licensees (LG München I, 21 O 12112/25, 2025)The court upholds the prohibition on seeking an interim licence over German patents from the High Court, as contrary to territoriality and to the Huawei v ZTE balance, and distinct from a prohibited anti-suit injunction.
- Samsung v ZTE (EWCA, [2025] EWCA Civ 1383, 2025)Absent a legitimate and substantiated objection to the chosen forum, a SEP owner that brings injunction proceedings to force FRAND determination in its preferred forum does not act in bad faith; the declarations based on such bad faith were set aside.
- Optis v Apple (EWCA, [2025] EWCA Civ 552, 2025)The Court of Appeal set Apple's worldwide FRAND licence at USD 0.15 per unit, a lump sum of USD 502m before interest for 2013 to 2027, and treated Optis's Texas judgment as a floor for the royalties.
- EVS SEP holder v mobile phone distributor (OLG München, 6 U 3824/22 Kart, 2025)Absent qualified security based on the holder's last offer and covering the worldwide portfolio licence proposed, the FRAND defence fails without the offer being examined; the injunction is upheld.
- Tesla v InterDigital and Avanci (EWCA, [2025] EWCA Civ 193, 2025)By a majority, the Court of Appeal dismissed Tesla's appeal: the FRAND undertaking does not oblige SEP owners to license collectively, so there is no serious issue to be tried on whether the Avanci 5G Platform licence is FRAND; Arnold LJ dissented.
- Lenovo v Ericsson (EWCA, [2025] EWCA Civ 182, 2025)Ericsson is in breach of its good faith obligation under clause 6.1 by pursuing injunctions abroad although Lenovo has undertaken to enter into the cross-licence determined by the Patents Court; a willing licensor would grant an interim licence, with the royalty set at the mid-point between the offers.
- Alcatel Lucent v Amazon (EWCA, [2025] EWCA Civ 43, 2025)Amazon's claim for a declaration that Nokia would grant an interim licence of its RAND video portfolio, and for specific performance of that licence, has a real prospect of success; the amendments refused at first instance were allowed.
- Panasonic v Xiaomi (EWCA, [2024] EWCA Civ 1143, 2024)A SEP holder which has asked the English court to set a global licence and undertaken to enter into it breaches its clause 6.1 duty of good faith by pursuing injunctions abroad. The majority declared that a willing licensor would grant an interim licence on the terms set by the court.
- Motorola Mobility v Ericsson (EWCA, [2024] EWCA Civ 1100, 2024)The interim injunction based on a UK patent essential to 5G was refused: loss caused by the alleged UK infringement is compensable in money, and losses suffered abroad due to the opponent's injunctions are not caused by that infringement.
- InterDigital v Lenovo (EWCA, [2024] EWCA Civ 743, 2024)A court-determined FRAND licence covers all past sales irrespective of limitation and carries compound interest at 4%. The rate derived from the comparable licence had to be corrected for non-FRAND discounts on past sales, and the lump sum was increased to $178.3 million before interest.
- Panasonic v Xiaomi (EWHC (Pat), [2024] EWHC 1733 (Pat), 2024)Good faith performance of the FRAND undertaking does not require a SEP holder that has undertaken to enter into the court-determined licence to grant an interim licence. The declaration was also refused for want of utility and out of comity towards the German courts.
- Standardessentielle Mobilfunknetz-Patente (OLG Karlsruhe, 6 U 204/22 Kart, 2023)The licensed operator's claim is dismissed: the licence is not discriminatory, the clause excluding a duty to pursue third parties waives damages claims, and the SEP holder does not guarantee the success of its efforts against competitors.
- Optis v Apple (EWHC (Pat), [2023] EWHC 1095 (Ch), 2023)Marcus Smith J set the worldwide FRAND licence of Optis's portfolio for Apple at USD 5.13m a year, that is USD 25.65m for the future and USD 30.78m for 2017 to 2022, plus interest, pricing the Stack on Apple's lump sum licences.
- Intex v Ericsson (Delhi High Court, FAO(OS)(COMM) 296/2018, 2023)The Delhi High Court upheld the prima facie finding that Intex, an unwilling licensee, infringed eight Ericsson SEPs and ordered it to pay the entire royalty amount within four weeks.
- InterDigital v Lenovo (EWHC (Pat), [2023] EWHC 539 (Pat), 2023)Mellor J set the worldwide FRAND licence of InterDigital's portfolio for Lenovo at USD 0.175 per unit, a lump sum of USD 138.7m for sales from 2007 to the end of 2023, taking LG 2017 as the best comparable; neither party's offer was FRAND.
- Philips France Commercial v Thales (Paris Court of Appeal, RG 22/16659, 2023)The court upholds the refusal to set aside the ex parte order authorising, under Article 145 of the Code of Civil Procedure, a seizure of documents at Philips France Commercial in the context of FRAND negotiations.
- Nokia v Oleading (Rechtbank Den Haag, KG ZA 22-1045, 2023)As Nokia's loss was purely financial and covered by security, while an injunction would have serious and irreversible consequences for the distributors, the interim relief judge refused a provisional injunction on two 4G and 5G essential patents.
- Optis v Apple (EWCA, [2022] EWCA Civ 1411, 2022)The Court of Appeal upholds the FRAND injunction: an implementer that does not undertake to take a licence on court determined FRAND terms faces an injunction, but may give that undertaking at any time.
- SEP holder v smartphone manufacturer (LG München I, 21 O 11522/21, 2022)A SEP holder that complies with its FRAND obligations is not exposed to the disproportionality exception in section 139(1), third sentence, PatG, even for a complex product; the FRAND defence fails for lack of willingness.
- Nokia v OnePlus (EWCA, [2022] EWCA Civ 947, 2022)The English court retains jurisdiction and refuses to stay Nokia's claim for infringement of UK SEPs in favour of OPPO's global FRAND rate-setting claim in Chongqing, the dispute being an infringement claim in which the FRAND undertaking is a defence.
- HEVC SEP holder v Z. group companies (OLG Düsseldorf, 2 U 25/21, 2022)A purely preventive anti-anti-suit injunction is inadmissible for want of legitimate interest where no anti-suit injunction is sought or threatened and no main action is pending in a forum offering that remedy.
- Steuerkanalsignalisierung II (OLG Karlsruhe, 6 U 149/20, 2022)The Karlsruhe Higher Regional Court grants an injunction, recall and destruction: the FRAND defence fails for lack of willingness, the defendants having held back their objections to the calculation method for two years.
- Ericsson v Apple (Rechtbank Den Haag, KG ZA 21-914, 2021)The judge confined jurisdiction over the non-Dutch Apple companies to anti-suit injunctions taking effect in the Netherlands and Belgium, then dismissed Ericsson's anti-anti-suit claims for want of a concrete threat and because enforcing a covenant not to sue is not unlawful.
- Vestel v Philips and Access Advance (Rechtbank Den Haag, HA ZA 20-1236, 2021)Having jurisdiction over Philips, the Dutch court also has jurisdiction, on grounds of connection under Article 7(1) Rv, over Access Advance and two HEVC pool members established outside the EU in Vestel's FRAND action.
- Oppo v Sharp (SPC, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 517, 2021)The Supreme People's Court upheld the Shenzhen court's jurisdiction to hear OPPO's claim and to set worldwide licence terms for Sharp's standard essential patents, without any forum agreement.
- Vestel v Access Advance (EWCA, [2021] EWCA Civ 440, 2021)Absent any asserted legally enforceable right to a FRAND licence, an implementer cannot obtain a free-standing declaration from the English court that a pool licence is or is not FRAND; jurisdiction over Philips and Access Advance was declined.
- 3G and 4G SEP holder v Chinese smartphone maker (LG München I, 7 O 14276/20, 2021)The anti-anti-suit injunction is upheld; the chamber finds a threat of first infringement in particular where a global royalty action is filed in an anti-suit forum or no written undertaking is given.
- Wurzelsequenzordnung (OLG Karlsruhe, 6 U 130/20, 2021)Enforcement of the injunction is stayed against security: a counter-offer leaving the royalty to the patentee's equitable determination (section 315(3) BGB) in principle shows sufficient willingness to take a FRAND licence.
- Mobilstation (OLG Karlsruhe, 6 U 103/19, 2020)Defendants whose conduct aimed at delaying a licence cannot rely on the FRAND defence; an explained offer that is FRAND for an average licensee suffices, and a counter-offer is due unless the offer is clearly non-FRAND.
- LTE SEP holder v car manufacturer (LG Düsseldorf, 4c O 17/19, 2020)Stay and preliminary reference to the CJEU on suppliers' priority for a licence and on refining the Huawei v ZTE steps, the chamber favouring a right of every supplier to an unrestricted licence.
- FRAND-Einwand II (BGH, KZR 35/17, 2020)The BGH restored the injunction against the Haier group companies: absent a clear and continuing willingness to take a FRAND licence, the SEP holder's action was not abusive, even if its offers were discriminatory.
- Conversant v Huawei (SPC, (2019) 最高法知民终732、733、734号之二, 2020)The Supreme People's Court upheld the order prohibiting Conversant, on pain of RMB 1 million per day, from seeking provisional enforcement of the German injunction against Huawei before its final ruling on the licence rate. Neither comity nor an offer of security justified lifting the order.
- Unwired Planet v Huawei (UKSC, [2020] UKSC 37, 2020)The English court may, without both parties' consent, make the refusal of an injunction conditional on a global portfolio licence and set its FRAND terms. Non-discrimination is a general obligation, only prior notice under Huawei v ZTE is mandatory, and an injunction remains the appropriate remedy.
- Lizenz in Wertschöpfungskette (LG Mannheim, 2 O 34/19, 2020)A car maker that refers the SEP holder to its suppliers and bases the royalty on the price of telematics units is not willing to take a licence; an injunction is granted.
- FTC v Qualcomm (9th Cir., No. 19-16122, 2020)Qualcomm's OEM-only licensing, its refusal to license rival chipmakers and its "no license, no chips" policy do not violate the Sherman Act. Any breach of its FRAND commitments is a matter for contract or patent law.
- FRAND-Einwand (BGH, KZR 36/17, 2020)The FRAND defence fails because the infringer never declared clearly, unconditionally and promptly that it was willing to take a FRAND licence; the judgment granting destruction, recall and damages is restored.
- Sisvel v Xiaomi (Gerechtshof Den Haag, 200.265.385/01, 2020)The balance of interests requires refusal of the interim injunction on Sisvel's essential patent, even assuming the patent valid and infringed and Xiaomi's FRAND defence bound to fail; the first instance ruling was upheld.
- Lenovo v IPCom (Paris Court of Appeal, RG 19/21426, 2020)The Paris Court of Appeal upheld the order requiring Lenovo's US companies to withdraw their anti-suit motion targeting IPCom's French infringement actions, a manifestly unlawful disturbance, but set aside the general ban on new applications.
- TCL v Philips and ETSI (Paris Judicial Court, RG 19/02085, 2020)The pre-trial judge holds that the Paris Judicial Court has jurisdiction over Philips as co-defendant with ETSI and rejects the lis pendens and related actions objections based on the English infringement action.
- Philips v Asus (Gerechtshof Den Haag, 200.233.166/01, 2019)The Hague Court of Appeal held EP 1 440 525 valid and infringed, granted an injunction and rejected Asus's FRAND defence for want of any genuine willingness to take a licence.
- Nokia v Continental (OLG München, 6 U 5042/19, 2019)Applying in the United States for an anti-suit injunction to block German infringement actions interferes with the patent as a property-like right; the preventive prohibition against the parent company is upheld.
- Philips v Wiko (Gerechtshof Den Haag, 200.219.487/01, 2019)As Wiko had not shown itself willing to take a licence before the proceedings, Philips's action on a UMTS essential patent was not abusive; an injunction was granted and a stay pending German proceedings refused.
- Unwired Planet v Huawei (EWHC (Pat), [2017] EWHC 711 (Pat), 2017)Birss J held that only a worldwide licence is FRAND between Unwired Planet and Huawei, set its rates (a 0.062% benchmark for 4G handsets, 0.052% in major markets), rejected the abuse of dominance case and held that an injunction should be granted as Huawei would not take that licence.
- GPRS SEP holder v distributors of a handset group (OLG Düsseldorf, I-15 U 66/15, 2017)Absent a non-discriminatory FRAND offer by the patentee to willing defendants, destruction and recall are dismissed for the time being; damages are limited to a FRAND royalty.
- Archos v Philips (Rechtbank Den Haag, HA ZA 16-206, 2017)Archos failed to show either that Philips's offer of USD 0.75 per product for its UMTS and LTE portfolio was not FRAND or that its own counter-offer of about 7 cents was; its declaratory claims were dismissed.
- Sisvel v Archos (JM Barcelona, 133/2016, 2016)The ex parte interim measures sought on the eve of the Mobile World Congress were refused for lack of urgency after years of tolerated use and as disproportionate to an aim of obtaining a royalty.
- Microsoft v Motorola (9th Cir., No. 14-35393, 2015)The Ninth Circuit affirmed the USD 14.52m award against Motorola: its injunction actions on standard essential patents could breach the duty of good faith arising from its RAND commitments, and Microsoft's defence costs were recoverable.
- Huawei v ZTE (CJEU, C-170/13, 2015)A SEP proprietor that has given a FRAND undertaking does not abuse its dominant position by seeking an injunction or recall if it has notified the infringer and made a specific written offer, and the infringer has not responded diligently and in good faith. Claims for accounts and damages are not caught by Article 102 TFEU.
- Ericsson v D-Link (Fed. Cir., 773 F.3d 1201, 2014)The royalty for a RAND-encumbered standard essential patent must reflect the value of the invention, excluding the value of the standard and of standardisation, and the jury must be instructed on the actual commitment given. The damages award was vacated and remanded.
- ZTE v Vringo (Rechtbank Den Haag, KG ZA 14-870, 2014)A FRAND undertaking does not, absent special circumstances, bar a seizure based on an essential patent; as ZTE made no offer before the measure, a breach by Vringo was not plausible and lifting was refused.
- Samsung v Apple (IP High Court, 2013 (Ne) 10043, 2014)The court held Samsung's standard essential patent valid and infringed but capped damages at the FRAND royalty of JPY 9,955,854, any excess being an abuse of right absent proof that Apple was unwilling to take a FRAND licence.
- Samsung, UMTS standard essential patents (European Commission, AT.39939, 2014)The Commission makes binding for five years Samsung's commitments not to seek EEA injunctions on its mobile standard essential patents against a licensee that accepts a negotiation of up to twelve months followed by determination of FRAND terms by a court (Patents Court or UPC) or an arbitrator.
- Motorola, GPRS standard essential patents (European Commission, AT.39985, 2014)Motorola infringed Article 102 TFEU by seeking and enforcing in Germany a GPRS SEP injunction against Apple, a licensee that was not unwilling, from 4 October 2011 to 29 May 2012; no fine is imposed.
- Samsung v Apple (Rechtbank Den Haag, KG ZA 11-818, 2011)A FRAND undertaking is not an offer the implementer can accept but obliges the patentee to negotiate on FRAND terms; as Samsung's royalty demand departed far from that duty, the preliminary injunction against Apple was refused.
- Rambus (European Commission, COMP/38.636, 2009)The Commission makes binding for five years Rambus's commitments: no royalties on SDR and DDR chips, a 1.5% cap on the unit price for later DRAM standards and declining caps for memory controllers.
- Orange-Book-Standard (BGH, KZR 39/06, 2009)A defendant to an injunction claim may rely on the patentee's abuse of dominance in refusing a non-discriminatory licence, provided it has made an unconditional offer and behaves as a licensee by rendering accounts and paying or depositing royalties.