InterDigital v Lenovo (EWCA, [2024] EWCA Civ 743, 2024)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal of England and Wales confirmed that a court-determined FRAND licence covers all of the implementer’s past sales, irrespective of limitation periods, and carries interest at 4% compounded quarterly (paras 186, 206 and 227). It allowed InterDigital’s appeal in part: the judge should have corrected the rate derived from the LG 2017 licence, which was depressed by discounts on past sales granted in the face of hold out, and the lump sum was increased from $138.7 million to $178.3 million before interest (paras 252, 281 and 284). The judgment lays down two structural rules for valuing global SEP portfolio licences: limitation is irrelevant, and the passage of time must be financially neutral.

Facts and procedure

InterDigital holds a portfolio of patents declared essential to the ETSI 3G, 4G and 5G standards (para 1). After the FRAND trial, Lenovo undertook on 6 March 2023 to take a licence on the terms determined by the English courts, so the injunction issue fell away (paras 20 and 44). Mellor J treated LG 2017 as the only comparable licence, derived a blended rate of $0.24 per unit, applied an adjustment ratio of 0.728 to reach $0.175 for all sales from 2007 to 2023, and awarded interest at 4% compounded quarterly, a total of $184.9 million (paras 2 and 228). InterDigital sought $517.8 million; Lenovo disputed payment for sales before the third quarter of 2013 and the award of interest (paras 2, 166 and 167).

The applicable law

The court applied clause 6.1 of the ETSI IPR Policy as analysed by the Supreme Court in Unwired Planet (paras 22 to 33), the ETSI Guide and FAQs, under which a willing licensee seeks out licences and sets funds aside for royalties (paras 34 to 38), the idea of FRAND as a process (para 39) and the willing licensor and willing licensee test (para 40).

Question

Must FRAND terms take account of national limitation periods and include interest on past royalties, and was the judge entitled to adopt, without correction, the rate from a comparable licence affected by non-FRAND factors (paras 166 and 167)?

Decision

On the cross-appeal, an implementer needs a licence from the first day it implements the standard, and the relevant date is at the latest the parties’ first contact (para 187). FRAND terms should not depend on when the licence is entered into nor favour slow implementers (para 188). Limitation applies to claims for damages, whereas the FRAND determination concerns the price of a licence and, at the time of trial, an injunction (para 191). Lenovo’s approach would encourage implementers to delay (para 193), and the judge’s approach is forum-neutral (para 195). Interest follows from the principle that the timing of payment should be economically neutral (paras 213 and 214); the 4% rate agreed by the parties for late payments and compounding were upheld (paras 219, 220 and 226).

On the main appeal, the judge’s reasoning was internally inconsistent: he had found that heavy discounting of past sales was not FRAND, yet made no correction for it in the rate taken from LG 2017 (para 252). Burden of proof has no real role in the comparables exercise, where the court must do the best it can with the material available (para 268). The court nonetheless rejected the future rate of $0.61, which was inflated to offset those discounts (para 277), and adopted $0.30 per unit and a ratio of 0.75, giving $0.225 and $178.3 million (paras 280, 283 and 284). The top-down cross-check remains less reliable than comparables (para 286). The declaration that InterDigital was a willing licensor was refused as serving no purpose (para 287). Nugee LJ expressed doubts on the main appeal but did not dissent (paras 291 and 301).

Key points for practice

• National limitation periods do not limit the period covered by a FRAND licence determined by the English court (paras 186 and 191).
• Interest on past royalties is payable in principle; in an appropriate case, the SEP owner’s conduct may lead the court to reduce or withhold it (paras 189 and 216).
• A comparable licence is not in itself a FRAND rate: the court must correct the non-FRAND factors it has identified (paras 252 and 253).
• Practical point: delay does not reduce the royalty payable, which bears on the value of a dilatory strategy in portfolio licence negotiations (paras 188, 193 and 201).

Provisions applied

ETSI IPR Policy

clause 6.1; ETSI Guide on IPRs, sections 4.4 and 4.5; FAQs of July 2014

National law

Limitation Act 1980 (United Kingdom)

Case law cited

CJEU, Huawei v ZTE, C-170/13; Unwired Planet v Huawei [2017] EWHC 2988 (Pat), [2018] EWCA Civ 2344 and [2020] UKSC 37; Optis v Apple [2021] EWHC 2564 (Pat) and [2022] EWCA Civ 1411; TCL v Ericsson (C.D. Cal. 2018) and 943 F.3d 1360 (Fed. Cir. 2019); In re Spectrum Plus [2005] UKHL 41; Griffiths v TUI [2023] UKSC 48; Smith Kline & French (Cimetidine) [1990] RPC 203; Board of Trade v Cayzer, Irvine [1927] AC 610

Related decisions

• InterDigital v Lenovo, High Court (Patents Court), 16 March 2023, the first instance judgment, upheld on limitation and interest and varied on quantum.
• Unwired Planet v Huawei, UK Supreme Court, 26 August 2020, the framework on clause 6.1 and non-discrimination applied by the court.
• Optis v Apple, Court of Appeal, 27 October 2022, cited on the asymmetric effects of delay.
• Huawei v ZTE, CJEU, 16 July 2015, cited for FRAND as a process.

Prepared by Dhenne Avocats from the text of the decision (public approved judgment, National Archives; the Bristows copy could not be accessed), consulted on 11 October 2026. Only the official text is authoritative.