Optis v Apple (EWCA, [2025] EWCA Civ 552, 2025)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal allowed Optis’s appeal and set the price of Apple’s worldwide FRAND licence itself: USD 0.15 per unit, capitalised as a lump sum of USD 502m before interest for the period 2013 to 2027, in place of the USD 56.43m awarded at first instance (paras 4, 145 and 150). It rejected the judge’s method, which rested on a simple average of lump sums, and held that the judgment Optis obtained in Texas should act as a floor for the royalties due under the licence (paras 106, 114 and 257).

The judgment refines the comparables approach, explains how hold out bears on the choice of comparables and addresses how a worldwide licence settled in London interacts with a foreign damages award.

Facts and procedure

Optis, which holds a portfolio declared essential to ETSI standards, sued Apple in February 2019 in the Patents Court and, almost simultaneously, in the US District Court for the Eastern District of Texas (paras 6 and 170). After the technical trials and Trial F, which gave Optis a FRAND injunction (para 184), Trial E dealt with the licence terms (para 9). Marcus Smith J rejected both accountancy experts, derived an implied stack price from 19 Apple licences and the Optis Google licence, averaged the figures and arrived at USD 5.13m a year over eleven years (paras 4 and 63 to 75). His order and his short-form licence required foreign proceedings to come to an end (paras 215, 221 and 222). In Texas a jury awarded USD 300m, and that judgment is under appeal (paras 183 and 196).

The applicable law

The English court’s jurisdiction rests on the contractual effect of the FRAND undertaking given to ETSI (para 1). A FRAND rate is the rate a willing licensor and a willing licensee would agree, an idealised legal standard (para 119). The comparables approach follows Cimetidine: find the closest parallel and do not dilute it with licences that are not truly comparable (paras 35 and 114). A retrial under CPR r 52.20(2)(c) is a last resort (para 126).

Question

Was the judge entitled to reject the expert evidence and to price the licence by averaging lump sums, could the Court of Appeal set the rate itself, and how should the licence treat the US judgment?

Decision

Rejecting the experts was unfair because the criticisms relied on were never put to them (para 88). The court distinguished the comparability of a licence, a matter for the judge, from the reliability of the data drawn from it, which unpacking improves (paras 90 and 91). The simple average had no basis in the evidence or in principle (para 106); the spread of values showed that the licences were not all good comparables or not all FRAND (para 109), and the Google licence had been included without regard to sales volumes (paras 110 to 112).

The distinction between legitimate and illegitimate hold out was unhelpful: a finding of hold out in a negotiation is not a finding of unlawful conduct, only that its outcome cannot be taken as the FRAND rate (paras 118 and 119). The Apple licences showed a degree of hold out (paras 122 and 123).

Without a retrial, Birss LJ put the licences on a common per-unit scale for a 0.38% stack share (para 128). The rate derived from the Google licence was too high on a top-down cross-check (paras 140 to 142); the patentee is entitled to the top of any range, USD 0.20 was still too much and USD 0.15 was FRAND (paras 143 to 145). Arnold LJ held that interest runs until payment (paras 165 to 167). Because Apple refused until 15 September 2023 to commit to the licence settled by the English court, responsibility for the parallel proceedings lay with Apple (paras 227 to 233): the licence could not require Optis to give up the Texas judgment, which operates as a floor (para 257), a result supported by comity (para 258). Paragraph 6(2) of the order and clauses 5(2) and 7 of the licence were set aside (para 261).

Key points for practice

• The SEP holder’s own licences of the same portfolio are the place to start; licences granted to the implementer also require the licensed portfolios to be compared (para 95).
• Both a per unit rate and an ad valorem rate can be FRAND, each being a tool towards a lump sum (para 89).
• A top-down cross-check against the stack remains useful to rule out an excessive rate (para 142).
• Practical point: an implementer that delays committing to the court-determined licence bears the consequences of foreign actions brought by the SEP holder in the meantime (paras 233 and 257).

Provisions applied

Other texts

ETSI Intellectual Property Rights Policy

National law

Civil Procedure Rules, r 52.20(2)(c)

Case law cited

Unwired Planet v Huawei [2020] UKSC 37 and [2017] EWHC 2988 (Pat); InterDigital v Lenovo [2024] EWCA Civ 743; Smith Kline & French Laboratories (Cimetidine) Patents [1990] RPC 203; Simetra v Ikon Finance [2019] EWCA Civ 1413; Hollington v Hewthorn [1943] KB 587; Conversant v Huawei [2018] EWHC 808 (Pat); TCL v Ericsson (United States, 2018); Optis v Apple [2019] EWHC 3538 (Pat), [2021] EWHC 2564 (Pat) and [2022] EWCA Civ 1411

Related decisions

• Optis v Apple, High Court, 10 May 2023, the Trial E judgment varied on this appeal.
• Optis v Apple, Court of Appeal, 27 October 2022, same case, appeal on the Trial F FRAND injunction (para 197).
• Unwired Planet v Huawei, Supreme Court, 26 August 2020, basis of the jurisdiction to settle a worldwide licence (para 1).
• InterDigital v Lenovo, Court of Appeal, 12 July 2024, followed on past sales and interest (paras 80 and 165).

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