Tesla v InterDigital and Avanci (EWCA, [2025] EWCA Civ 193, 2025)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Court of Appeal, by a majority (Phillips LJ and Whipple LJ), dismissed Tesla’s appeal against Fancourt J’s refusal to accept jurisdiction over its claims for declarations that the USD 32 per vehicle rate for the Avanci 5G Platform licence is not FRAND and for a determination of FRAND terms (paras 242 and 255). For the majority, the ETSI undertaking obliges each SEP owner to license its own patents, not to license collectively with other owners; lacking any contractual foundation, the claim is a free-standing FRAND claim, as in Vestel (paras 228 to 236). Arnold LJ, dissenting, would have allowed the appeal (para 221).

The judgment sets two readings of pool licensing under the FRAND obligation against each other. The Supreme Court has since allowed Tesla’s further appeal ([2026] UKSC 27).

Facts and procedure

Tesla wishes to launch 5G-enabled vehicles in the UK (para 2). Avanci administers the 5G Platform, which had some 66 members and 170,000 declared SEPs (para 1), around 11,900 of them UK SEPs (para 2). It has given no FRAND undertaking and acts as agent for the SEP owners, without power to alter the licence terms on its own (paras 19 and 20). The 4G licence cost USD 15 per vehicle (para 16); the 5G licence is offered at USD 32 on a non-negotiable basis (para 2). Tesla has taken a bilateral licence from a single SEP owner, referred to as L1 (para 31).

Tesla issued proceedings on 5 December 2023 for revocation and declarations of non-essentiality of three UK patents owned by IDPH and for declarations as to FRAND terms (para 3). Fancourt J ([2024] EWHC 1815 (Pat)) set aside service save on IDPH for the Patent Claims and refused to let InterDigital be sued as representative of the other members (paras 6 and 43).

The applicable law

Clause 6.1 of the ETSI IPR Policy, governed by French law, is a stipulation pour autrui for the benefit of implementers (para 9). The power to grant declarations rests on section 19 of the Senior Courts Act 1981 and CPR r 40.20 (paras 52 and 53). Service out requires a serious issue to be tried, a gateway and England being clearly the appropriate forum (para 40).

Question

Can the English court, at the instance of an implementer, entertain claims for declarations that the terms of a platform licence offered by an agent on behalf of several SEP owners are not FRAND, and for a determination of FRAND terms (para 7)?

Decision

For Phillips LJ, the English court’s jurisdiction to determine a FRAND licence including foreign patents rests entirely on the owner’s contractual undertaking (para 222). The owners have not agreed to license their SEPs collectively, and their voluntary participation in the platform does not extend that undertaking (paras 228 and 229). No contractual obligation therefore founds jurisdiction, even if all owners were joined, and still less against Avanci (para 231). Procedural fairness would in any event bar a declaration without the owners (para 237), and the bilateral licence claim, raised orally on appeal, came too late (paras 240 and 241). Whipple LJ added that Avanci does not assume the owners’ FRAND obligations and that Tesla must choose between the platform licence at the offered rate and bilateral FRAND licences (paras 249 and 250).

Arnold LJ distinguished Vestel, since Tesla relies on the members’ FRAND obligations (para 88), and found it well arguable that a declaration may concern rights not vested in the parties (para 84) and that a declaration setting a rate below USD 32 would serve a useful and legitimate purpose (para 97). He held that Gateway 11 applied (paras 108 and 109), that service on IDPH was valid (para 212), and that the Delaware Court of Chancery is not an available forum, the judge having reversed the burden of proof (paras 126 and 149). All three judges upheld the refusal of a representation order (paras 205 and 239).

Key points for practice

• For the majority, the FRAND undertaking is individual and does not extend to collective licensing, even where the owner has joined a platform (paras 228 and 229).
• Absent a contractual undertaking covering collective licensing, a claim to set a pool rate is treated as a free-standing FRAND claim (paras 235 and 236).
• For Arnold LJ, the refusal to make InterDigital represent the members was justified in part because 14 of the 67 members owned no UK SEPs (para 195).
• Practical point: a claim to a bilateral licence should be pleaded at first instance; raised for the first time at the appeal hearing, it was held too late by the majority (paras 240 and 241).

Provisions applied

Other provisions

ETSI IPR Policy, clauses 6.1 and 6.2

National law

Senior Courts Act 1981, s 19; Patents Act 1977, s 71; Civil Procedure Rules, r 19.8, r 40.20, r 63.1 and r 63.14(2); CPR PD 6B, para 3.1(3) and (11) (Gateways 3 and 11)

Case law cited

Unwired Planet v Huawei [2020] UKSC 37; Vestel v Access Advance [2021] EWCA Civ 440; Optis v Apple [2022] EWCA Civ 1411; Nokia v OnePlus [2022] EWCA Civ 947; InterDigital v Lenovo [2024] EWCA Civ 743; Panasonic v Xiaomi [2024] EWCA Civ 1143; Alcatel Lucent v Amazon [2025] EWCA Civ 43; Lenovo v Ericsson [2025] EWCA Civ 182; Nokia v InterDigital [2006] EWHC 802 (Pat); Messier-Dowty v Sabena [2000] 1 WLR 2040; Rolls-Royce v Unite [2009] EWCA Civ 387; Milebush v Tameside [2011] EWCA Civ 270; Tyne and Wear PTE (Nexus) v RMT [2024] UKSC 37; Lloyd v Google [2021] UKSC 50; Actavis v Eli Lilly [2013] EWCA Civ 517; Spiliada v Cansulex [1987] AC 460; Altimo v Kyrgyz Mobil Tel [2011] UKPC 7; In re Harrods (Buenos Aires) [1992] Ch 72; Voda v Cordis, 476 F.3d 887 (Fed. Cir. 2007)

Related decisions

• Tesla v InterDigital and Avanci, Supreme Court, 27 July 2026, same proceedings, further appeal allowed.
• Vestel v Access Advance, Court of Appeal, 26 March 2021, applied by the majority (para 236) and distinguished by Arnold LJ (para 88).
• Panasonic v Xiaomi, Court of Appeal, 3 October 2024, relied on by Arnold LJ on the utility of a declaration (para 96).
• Unwired Planet v Huawei, Supreme Court, 26 August 2020, on which the majority grounds the need for a contractual undertaking (paras 222 and 235).

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