Samsung v Apple (Rechtbank Den Haag, KG ZA 11-818, 2011)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The interim relief judge of The Hague District Court refused Samsung the preliminary injunction it sought against Apple on four patents declared essential to the UMTS standard. Applying French law to the ETSI declaration, the judge held on a provisional basis that a FRAND undertaking is not an offer that an implementer can simply accept, but that it does oblige the patentee to negotiate a licence on FRAND terms. The royalty Samsung demanded departed so far from that obligation that enforcing its patents risked being held an abuse of rights. Decided before Huawei v ZTE, the judgment weighs the conduct of both sides in the negotiation.

Facts and procedure

Samsung gave ETSI a general FRAND declaration in 1998, followed by declarations covering EP 516, EP 528, EP 136 and EP 269 (points 2.8 to 2.11). It alleged that Apple’s iPhones and iPads infringed them and, in four joined cases, sought an injunction, disclosure of sales data, a recall and penalty payments (point 3.1). Apple relied on exhaustion through chipsets supplied by Infineon and later Intel, on an existing FRAND licence, on waiver of rights (rechtsverwerking) and on a duty to negotiate in good faith; it counterclaimed for orders that Samsung continue negotiating or accept its offer (points 3.3 and 3.4). Points 4.28 to 4.33 are redacted in the published version.

The applicable law

The judge applied French law to the scope of the FRAND undertaking given under the ETSI IPR Policy, and Dutch law to waiver (points 4.8 and 4.17). The judge also relied on clause 4.1 of the 2008 ETSI Guide on IPRs, which records earlier practice (point 4.12).

Question

Can the holder of a FRAND-encumbered essential patent obtain a preliminary injunction against an implementer while the parties disagree on the royalty?

Decision

The claims and counterclaims were all dismissed (point 5.1). The FRAND declaration is not an offer capable of acceptance without negotiation, since it refers to terms to be agreed (points 4.12 and 4.13). Third parties may rely on being offered a FRAND licence, not on using the standard for free (point 4.18), and neither exhaustion nor an existing licence was made out (points 4.7 and 4.16). The judge nonetheless rejected Samsung’s argument that the declaration was a mere invitation to enter into talks: it obliges Samsung at least to negotiate a licence on FRAND terms (point 4.27). The rate demanded of Apple departed so far from the duty to make a FRAND offer that Samsung did not appear genuinely willing to license, whereas Apple’s offer was not shown to lack seriousness (points 4.34 and 4.35). Relying on the patents therefore risked being held an abuse of rights in the main proceedings, which defeated the interim injunction, given its serious consequences for Apple and Samsung’s long tolerance (point 4.36). The route to a licence starts with a request from Apple followed by a FRAND offer from Samsung, which may seek an injunction again if talks fail (point 4.38). The counterclaims failed for want of urgency or of any basis for imposing licence terms unilaterally (point 4.40).

Key points for practice

• Under French law, a FRAND undertaking creates a duty to negotiate a licence on FRAND terms without amounting to an offer accepted by mere use of the standard (points 4.12 and 4.27).
• A royalty demand far removed from a FRAND offer may suffice, in interim proceedings, for enforcement of the patent to be seen as a potential abuse of rights (points 4.34 and 4.36).
• The judge distinguished Philips v SK Kassetten, where the implementer had not sought a licence and no unreasonable demand was shown (point 4.37).
• Practical point: a patentee contemplating injunction proceedings should be able to show an offer it can defend as FRAND, and the implementer a licence request and a reasoned counter-offer.

Provisions applied

ETSI IPR Policy

clauses 4.1, 6.1 and 8.2 (1997 version); ETSI Guide on IPRs (2008), clause 4.1

National law

French law (scope of the FRAND declaration); Dutch law on waiver (rechtsverwerking); Art. 1019h Rv

Case law cited

HR 29 September 1995, LJN ZC1827; Philips v LG, 25 April 2007; Philips v SK Kassetten

Prepared by Dhenne Avocats from the text of the decision (rechtspraak.nl open data service), consulted on 11 October 2026. Only the official text is authoritative.