Within the past week, there have been three judgments rendered in the ongoing FRAND dispute between ZTE and Samsung. (For discussion on this blog of earlier proceedings in this dispute, see here.) On Friday, Mr. Justice Meade issued his decision in Samsung Elecs. Co. v. ZTE Corp., [2026] EWHC 999 (Pat.) (Eng.). In this action for a declaratory judgment, brought by net licensee Samsung, the court determines that a court-determined global FRAND license pertaining to ZTE’s and Samsung’s portfolios would (1) cover both 4G and 5G technology, (2) run for five years, and (3) require a net payment from Samsung in the amount of $392 million. This number is derived from one comparable, the 2020 SEP license between ZTE and Apple. Because ZTE negotiated this license from a position of comparative weakness, in part due to U.S. sanctions levied against the firm, the court effectively increases the inferred amount by 21%, which results in a net amount of $392 million. Meanwhile, it has been widely reported that on the very same day the Chongqing court, in which a parallel global FRAND rate determination has been ongoing, issued a decision applying a top-down methodology and awarding ZTE the full amount it had sought for a six-year license, namely $731 million. Then today the ip fray blog reports that the Munich Regional Court issued a written decision (apparently not yet publicly available), following up its oral decision last week that ZTE was entitled to an injunction, in which the court states that in its view a five-year global FRAND royalty based upon a top-down methodology would be in the amount of $640 million. The report indicates that the court urged the parties to settle.
Settlement would seem the most likely course to me at this juncture; but settlements occur in the shadow of the law, and so the question arises . . . well, what exactly is the law here? In other words, if the parties don’t settle, what happens?
Without the text of the Chongqing decision, the answer to this question is necessarily somewhat speculative—and even with it, I’m not sure I know the answer, but I will hazard a few possibilities nonetheless. First, since the English decision is (at this stage) only for a declaratory judgment, I think Samsung would have to follow up with a request for injunctive relief (within the U.K.) and/or specific performance, if it wanted to force ZTE to accede to Mr. Justice Meade’s terms. But then the question would arise whether, if ZTE didn’t accede (or perhaps even if it did?), other jurisdictions would feel themselves bound to recognize the judgment. I suspect the Chinese courts would not, particularly in view of the recently-published Regulations of the People's Republic of China on Countering Foreign States' Unlawful Extraterritorial Jurisdiction Measures (which have been reported on elsewhere, and which may be the subject of a separate forthcoming blog post); and perhaps the German courts wouldn't either. As for the Chongqing decision, if Samsung were to refuse to accede, I suspect that that court might enter an injunction against Samsung and/or permit the judgment to be levied against whatever assets Samsung has in China. Whether courts outside of China would enforce or recognize the judgment, however, remains to be seen; as readers are probably aware, the EU has a pending WTO complaint targeting China’s practice of establishing global FRAND royalties. The German decision, if I understand correctly, would appear to force Samsung products off the market in Germany unless and until a license (covering at least whatever domestic SEP or SEPs are at issue in the Munich litigation) is concluded, but the court’s reported statements about the terms of a global FRAND license would not, in and of themselves, force Samsung to accede to those terms. Whether other courts are persuaded by the Munich court's reasoning would be up to those courts.
These are all topics to which I will be giving a good deal of thought over the summer, as I work on an essay on IP and extraterritoriality. I’m hoping as well that some of the well-regarded voices on private international law—that is, on general private international law not limited to the IP context, people such as Professors Bill Dodge and Curtis Bradley--will have something to say about this morass, and possibly how to resolve it.
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