Lenovo v Ericsson (EWCA, [2025] EWCA Civ 182, 2025)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal (England and Wales) held that Ericsson is in breach of its duty of good faith under clause 6.1 of the ETSI IPR Policy by pursuing injunctions and equivalent relief abroad while Lenovo has undertaken to enter into the cross-licence to be determined by the Patents Court. It declared that a willing licensor would grant an interim licence and set the royalty at the mid-point between the parties’ offers. The judgment extends Panasonic v Xiaomi to a SEP holder that has neither invoked the English jurisdiction nor given any undertaking to the court, and is intended to give the Patents Court clear guidance (para 1).

Facts and procedure

Lenovo and Ericsson each hold patents declared essential to the ETSI 4G and 5G standards, subject to reciprocity; any FRAND licence will be a global cross-licence, under which Lenovo accepts it will be a net payer (paras 41 to 48). In October 2023 Ericsson sued in the Eastern District of North Carolina and before the ITC, and then obtained preliminary injunctions in Brazil and Colombia (paras 58, 64, 75 and 76). Lenovo asked the English court to determine the terms of a global cross-licence and undertook to enter into it; Ericsson did not (paras 69 and 72 to 74). Ericsson’s jurisdiction challenge failed and was not appealed, and the FRAND trial was listed for the end of April 2025 (para 70). Richards J refused the interim licence declaration on 19 November 2024 (paras 70 and 96 to 99).

The applicable law

Clause 6.1, governed by French law, creates a stipulation pour autrui and derogates from the general right to an injunction (para 18); FRAND also denotes a process of good faith negotiation (para 20). A declaration requires a legitimate useful purpose and may not be aimed at influencing a foreign court (paras 27 to 29). On French law, the Court held that an earlier finding adduced under section 4(2) of the Civil Evidence Act 1972 stands unless the contrary is proved, the burden lying on the party disputing it (paras 84 to 89). The high degree of assurance test applies (para 101).

Question

Is a SEP holder that has neither invoked the English jurisdiction nor given an undertaking to the court in breach of good faith when it pursues injunctions abroad against an implementer that has undertaken to take the licence determined by the Patents Court, and is an interim licence declaration useful and consistent with comity?

Decision

Since Lenovo has undertaken to pay whatever the court determines, with interest, it can no longer be accused of holding out (para 110). Ericsson’s accounting argument was rejected (paras 119 to 122). The only purpose of the foreign proceedings is to obtain a better outcome than the English court would determine (para 124). Although less egregious than Panasonic’s (para 126), that coercion is no longer justified and amounts to a breach of good faith (paras 127 to 129). The judge below conflated an interim licence with an ordinary FRAND licence (paras 132 to 136). The declaration serves a useful purpose because there is a real prospect that Ericsson will reconsider (para 142), and it does not offend comity since the foreign courts remain free to assess the parties’ conduct (paras 149 and 150). Ericsson’s preference for national injunctions over any judicial FRAND determination was described as hold up (para 153). The appeal was allowed (paras 156 and 157).

Key points for practice

• The implementer’s undertaking to the English court is sufficient to ground the declaration, even without a corresponding undertaking from the SEP holder (paras 107, 127 and 157).
• Interim licence terms are set by a simple method: the mid-point between the offers, adjustable once the final terms are determined (para 156).
• Refusing a substantial interim payment counts against the SEP holder, since any rational SEP owner would want to be paid sooner rather than later (para 118).
• Practical point: the implementer’s offer to accept a determination by the US court if the SEP holder dropped its injunction campaign weighed in the good faith assessment (paras 153 and 157).

Provisions applied

ETSI IPR Policy

clause 6.1

National law

French Civil Code, Art. 1104; Civil Evidence Act 1972, s 4; Civil Procedure Rules, rr 25.1(1)(b), 33.7 and 40.20

Case law cited

Unwired Planet v Huawei [2020] UKSC 37 and [2018] EWCA Civ 2344; CJEU, Huawei v ZTE, C-170/13; Nokia v OnePlus [2022] EWCA Civ 947 and [2023] EWHC 1912 (Pat); InterDigital v Lenovo [2024] EWCA Civ 743; Optis v Apple [2022] EWCA Civ 1411; Panasonic v Xiaomi [2024] EWCA Civ 1143 and [2024] EWHC 1733 (Pat); Alcatel v Amazon [2025] EWCA Civ 43; Teva v Novartis [2022] EWCA Civ 1617; Messier-Dowty v Sabena [2000] 1 WLR 2040; Howden v ACE [2012] EWCA Civ 1624

Related decisions

• Panasonic v Xiaomi, Court of Appeal, 3 October 2024, the decision whose reasoning is extended.
• Alcatel Lucent v Amazon, Court of Appeal, 28 January 2025, the second appeal in the series, cited on the limited nature of setting interim terms.
• Motorola Mobility v Ericsson, Court of Appeal, 30 September 2024, decided between the same groups on Lenovo’s application for an interim injunction.
• Unwired Planet v Huawei, UK Supreme Court, 26 August 2020, source of the principles applied.

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