ZTE v Samsung Electronics (CFI, 21 October 2026)

Dhenne Avocats · 22 October 2026

Our analysis

Summary

By an order of 21 October 2026 (UPC_CFI_847/2024, counterclaim for revocation UPC_CFI_442/2025), the judge-rapporteur of the Mannheim Local Division prepares the oral hearing of 18 and 19 November 2026 in ZTE Corporation’s infringement action against eight Samsung group companies on EP 3 577 874, shares the panel’s preliminary view that the patent is likely valid and infringed, sets aside the second day for the FRAND defence while questioning whether the defendants’ conduct matches that of a willing licensee, and proposes to raise the value of each action to EUR 8 million.

Facts and procedure

ZTE Corporation sued Samsung Electronics Co., Ltd. and seven European subsidiaries for infringement of EP 3 577 874, whose disputed features concern the determination of an intermediate, a modified and a final transport block size (TBS). The defendants filed a counterclaim for revocation and raised a FRAND defence. The dispute has been pending in several jurisdictions for a considerable time. In a parallel action between the same parties (UPC_CFI_850/2024), the Mannheim Local Division held an oral hearing at which FRAND issues were discussed at length and then made a settlement proposal, which did not resolve the conflict. The parties were permitted to file additional briefs on the negotiations, in which they analyse foreign decisions, notably the FRAND rate setting decision of the UK High Court ([2026] EWHC 2235 (Pat)), defended by the defendants and criticised by the claimant. On 16 October 2026, ZTE applied for leave to amend its requests, including by a new auxiliary request on the amount of any enforcement security.

Question

What guidance does the panel give the parties before the hearing on the scope of the requests, validity and infringement, and can the defendants’ conduct during the proceedings and in foreign litigation weigh in the assessment of whether they behave as willing licensees?

Decision

After consulting the presiding judge and the technically qualified judge, the judge-rapporteur states that the patent is likely to be infringed and valid, a view shared so that the parties may reach an amicable solution and avoid further escalation. Request IV.2 is read as a request for the production of accounts and information with supporting documents under Articles 67 and 68(3)(a) and (b) UPCA and Rule 191 RoP, together with a right to have the accounts verified by a sworn auditor (Court of Appeal, 14 October 2025, Kodak v Fujifilm, UPC_CoA_699/2024, para. 44). The counterclaim is presumed to cover the same eight states as the infringement action, and any claim directed at EPC states outside the UPCA would, under the BSH Hausgeräte principles, lead to international jurisdiction being declined. On validity, the panel doubts that ZP1, ZP2 and ZP3 disclose features 1.4 and 1.5 and notes that combinations first raised in the Reply to the counterclaim may amount to an extension of the case under Rule 263 RoP. On infringement, the parties are asked whether the general ban in request II.2 on indirect infringement needs special justification and whether the declaration sought in request I requires a legitimate interest. On FRAND, the order recalls the hearing in UPC_CFI_850/2024 and the failed settlement proposal, cites the UK finding that Samsung will be the net payer in a future cross-licence, observes that the defendants are publicly known to have pursued an active litigation campaign in the UK, and states that whether their conduct, partly redacted in the published version, is compatible with that of a willing licensee will be discussed at the hearing. The EUR 4 million value indicated by the parties for each action seems too low given the size of the market and the products concerned, and EUR 8 million is considered more appropriate, subject to the parties’ comments and the final decision. As the parties agreed a lump sum for costs, no cost estimate is required. The interim procedure will close immediately after 9 November 2026, the deadline for clarifying the requests and for the defendants’ comments on the application to amend of 16 October 2026.

Key points for practice

• The panel shares, ahead of the hearing, a preliminary view favourable to the patentee on validity and infringement, expressly to encourage settlement of a dispute pending in several jurisdictions.
• Under the FRAND defence, the willing licensee test looks at actual conduct towards a licence during the proceedings: the panel ties to this debate the division’s unsuccessful settlement proposal, the UK rate setting decision and the defendants’ continued litigation campaign in the UK.
• Prior art combinations first raised in the Reply to the counterclaim for revocation, where the counterclaim relied only on individual documents, may amount to an extension of the case under Rule 263 RoP.
• The request for accounts is grounded in Articles 67 and 68(3) UPCA and Rule 191 RoP, with verification by a sworn auditor, and the value in dispute indicated by the parties may be revised upwards in light of the market and territory concerned.

Provisions applied

UPC Agreement

Articles 67 and 68(3)(a) and (b) UPCA

Rules of Procedure

Rules 131.1(c), 141, 191 and 263 RoP

Related decisions

• ZTE v Samsung Electronics, 23 December 2025, parallel action UPC_CFI_850/2024 (EP 3 905 730) before the same division, order allowing a supplementary brief on recent FRAND negotiations.
• ZTE v Samsung Electronics, 13 January 2026, parallel action UPC_CFI_850/2024, confidentiality of a third party licence agreement and hearing date maintained.
• ZTE v Samsung Electronics Italia, 24 July 2025, parallel action UPC_CFI_850/2024, value in dispute of the FRAND counterclaim.
• ZTE v Samsung Electronics, 20 June 2025, parallel action UPC_CFI_850/2024, provisional value of the whole proceedings.

Prepared by Dhenne Avocats from the official decision, consulted on 22 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.