Samsung v ZTE (EWCA, [2025] EWCA Civ 1383, 2025)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal (England and Wales) reversed Mellor J, who had held ZTE in bad faith for bringing a wave of injunction proceedings to force Samsung to accept the determination of FRAND terms by the Chongqing Court rather than the Patents Court. Arnold LJ held that, absent a legitimate and substantiated objection to the forum in question, seeking to force the implementer to accept the SEP owner’s preferred forum is not bad faith (para 70). The fact that the English court was first seised is not enough (para 74). The judgment sets a clear limit to the interim licence case law derived from Panasonic v Xiaomi and Lenovo v Ericsson.

Facts and procedure

Samsung and ZTE, each holding portfolios of patents declared essential to the 2G to 5G standards, had been parties to a cross-licence which expired at the end of 2023; Samsung will be the net payer under the new licence (paras 14 to 16). Samsung sued in the Patents Court on 19 December 2024 and undertook to enter into the licence it determines; ZTE did not challenge the English jurisdiction but gave no undertaking (paras 17 and 19). On 23 December 2024 ZTE asked the Chongqing Court to determine the terms of a global cross-licence, and then brought injunction proceedings in Munich, before the Mannheim local division of the UPC, in Brazil and in Hangzhou; Samsung retaliated with its own actions (paras 21 to 29). The parties agree on an interim licence and its amount; they differ only as to which court’s determination should drive its adjustment (paras 1 and 36). Mellor J declared ZTE in bad faith and tied the adjustment to the English determination (paras 49 and 53).

The applicable law

The ETSI IPR Policy requires the parties to negotiate in good faith; the interim licence declaration is a limited remedy for hold up after the implementer has undertaken to the court (paras 3 to 5). Four questions arise: breach of good faith, useful purpose, comity and the FRAND terms of the interim licence; the burden lies on the implementer, subject to a high degree of assurance (paras 8 and 9). The Court recalled the absence of any global FRAND dispute resolution mechanism and the inescapable risk of jurisdictional conflict (paras 11 and 12).

Question

Does a SEP owner act in bad faith when it brings infringement proceedings in several countries in order to have FRAND terms determined by its preferred court rather than by the implementer’s preferred court?

Decision

The appeal was allowed on grounds 1 and 2. Unlike Panasonic and Lenovo, the judge had acquitted ZTE of seeking terms more favourable than FRAND (para 57). The Chongqing Court is a suitable forum, Samsung’s criticisms having been rejected (para 61), and there is no objection of principle to a party wishing to litigate in its home courts, as Article 4 of the Brussels I Regulation (recast) illustrates (para 63). Absent a legitimate and substantiated objection to that forum, using legal proceedings to press for it is not bad faith, unattractive as the conduct may be (paras 70 to 73). The English court being first seised is not sufficient, since no internationally agreed rule requires deference to it (para 74). The Court considered comity a real concern but did not decide that ground (para 78). Declarations 1, 3 and 4 fall; whether declaration 2, which is jurisdictionally neutral, should stand was left to brief written submissions (para 79).

Key points for practice

• An interim licence declaration requires proof that the SEP owner is seeking terms more favourable than FRAND, not merely a forum strategy (paras 57 and 70).
• A legitimate and substantiated objection to the other side’s forum might, in an appropriate case, ground an anti-suit injunction (para 71).
• Birss LJ traced the interim licence back to paragraph 67 of Huawei v ZTE and favoured a jurisdiction-neutral form (paras 84 and 85).
• Practical point: an interim licence whose payments are simply credited against the final licence, whichever forum settles it, avoids the forum dispute (paras 79 and 85).

Relevance before the UPC

Arnold LJ observed that the Munich I Regional Court and the UPC would both be entirely competent to undertake FRAND determination and would be neutral fora (para 60).

Provisions applied

Regulation (EU) No 1215/2012

Art. 4

ETSI IPR Policy

clause 6.1

Case law cited

Panasonic v Xiaomi [2024] EWCA Civ 1143; Alcatel v Amazon [2025] EWCA Civ 43; Lenovo v Ericsson [2025] EWCA Civ 182; Nokia v OnePlus (Nokia v OPPO) [2022] EWCA Civ 947; CJEU, Huawei v ZTE, C-170/13; Lifestyle Equities v Amazon [2024] UKSC 8; Iconix v Dream Pairs [2025] UKSC 25

Related decisions

• Samsung v ZTE, High Court, 1 May 2026, the judgment following the FRAND trial in the same dispute.
• Lenovo v Ericsson, Court of Appeal, 28 February 2025, whose para 153 was relied on below.
• Panasonic v Xiaomi, Court of Appeal, 3 October 2024, the first appeal in the series, distinguished.
• Nokia v OnePlus, Court of Appeal, 11 July 2022, cited on jurisdictional conflict in FRAND disputes.

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