As Many as Three Incompatible FRAND Judgments Before Breakfast

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.         

Kapischke on Interim Licenses and AILIs

Justus Kapischke has published an article titled Interim Licences and Anti-Interim-Licence Injunctions:  Semi-strict non-interference or rules for the race?, 5/2026 GRUR 275.  Here is the abstract:

This article analyses and provides background information on two recent decisions of the LG Munich I and the LD Mannheim.  In both decisions, the courts react negatively to the English practice of awarding interim licence declarations in FRAND disputes, enjoining implementers from applying for such relief.  The LD Mannheim further offers its opinion on the limits of final FRAND determinations in England.

The decisions at issue are, of course, Judgment of Nov. 26, 2025, LG Munich I, 21 O 12112/25, and InterDigital VC Holdings, Inc. v. Amazon.com, Inc., UPC_CFI_936/2025 (LD Mannheim Dec. 22, 2025), both of which entered anti-interim license injunctions (AILIs) directed against Amazon.  (Both decisions are also excerpted in this same issue of GRUR, at pp. 313-30.  The appeal from the Mannheim LD decision will be heard on May 28.)  The author ably illustrates the incompatibility of the English approach to FRAND disputes (under which the court’s task, ultimately, is to set a rate) and the German/UPC approaches (which to date have focused on conduct), writing that “[a] foreign court making injunctions unavailable by ordering the SEP holder to grant a licence interferes with the incentive structure of injunction focused approaches,” whereas “conduct-based injunctions may force settlement before any court had the chance to establish FRAND terms either by determining them or by confirming the FRANDness of the SEP-holder’s offer, frustrating a rate-setting approach” (p.177).  He questions some of the analysis of the above two decisions, noting that they both seem premised on the coercive effect of an English declaration concerning interim licenses (effectively equating them to antisuit injunctions), even though “it is clear that interim licences do not force an SEP-holder to accept rate-setting proceedings in the implementer’s preferred forum” (p.179).  True, the SEP holder’s refusal to comply with the declaration could result in its being deemed an unwilling licensor, but the author states that the SEP holder’s seeking an AILI is “unlikely to change anything about that” (p.180).  (In addition, it would seem to me, the odds that the SEP holder would obtain an injunction in the U.K. are pretty negligible anyway, aren’t they?)  In addition, he notes both courts’ emphasis on the territorial nature of patents, which however in a strictly jurisdictional sense “appears not to be the current law in Germany or the EU as exemplified by the ECJ’s judgment in BSH” (p.182).  I’m glad to see someone making this connection, which seems quite important to me.  The author argues, however, that strict territoriality is not the Mannheim LD’s position, but rather only what he refers to as “semi-strict” territoriality in the sense that “courts can, on behalf of SEP holders, impose their view of global FRAND licences on implementers by way of injunctions,” but implementers “may not use similarly coercive measures as means of imposing global FRAND determinations on SEP holders, since this would interfere with foreign infringement proceedings” (p.182).  I’m not entirely sure of the author’s view here, but I’m not convinced of the merits of this distinction.  (I plan to explore the question more deeply in a forthcoming essay I will contributing to the Research Handbook on Extraterritoriality and Intellectual Property, which I mentioned here the other day.  Consistent with the author’s observation that “both sides can at least plausibly accuse each other of having taken the first ASI-like measure” (id.), it has long seemed to me that when courts start issuing ASIs, AASIs, AILIs, declarations concerning interim licenses, and so on, it is awfully difficult to say which jurisdiction is the one violating the comity norm.)  The author closes by suggesting that it would be helpful “to obtain authoritative constructions of the relevant (F)RAND undertakings from the French of Swiss courts,” and also if SEP holders “offer[ ] to refrain from seeking injunctive relief if the implementer agrees to be bound by a rate-setting procedure in Germany or at the UPC” (id.).  Might the German courts and/or UPC ever head in this direction?      

Aggregate Royalties for Cellular SEPs

Nadia Soboleva and John Hayes have published an article titled Aggregate Royalty for Cellular SEPs in Recent Court Decisions, 11/2025 GRUR Patent 546.  Here is the abstract:

 

Standards organizations developing cellular communication standards typically require participants to disclose standard essential patents (SEPs) and agree to license such patents on fair, reasonable, and non-discriminatory (FRAND) terms. When courts are asked to adjudicate license disputes involving SEPs, they often calculate the implied aggregate royalty for all SEPs in the relevant standard associated with a potential license.  We review five recently litigated FRAND cases and report the aggregate royalty per mobile device in most of these decisions falls in a range from $3 to $16, with an average of $9.25.  The aggregate royalty by the UK Court of Appeal in Optis/Apple is an outlier of $39.47.

The five cases are the U.S. TCL v. Ericsson decision, Unwired Planet, InterDigital v. Lenovo, Optis v. Apple, and the Chinese Oppo v. Nokia decision.  The authors write that these cases “encompass the only publicly available decisions that set a worldwide FRAND royalty for the 4G or 5G cellular standards.”

A few quick things to note.  First, the authors are both from Charles River Associates, and they note that they “have worked on multiple projects involving SEPs, including some of the matters discussed in” their article.  Second, I haven’t endeavored to check the authors’ analysis against the decisions they discuss.  I have no reason too question their analysis, but for now I am just reporting what they state.  Third, a range of $3 to $16 seems pretty broad to me, even without Optis/Apple (the appeal from which is pending before the U.K. Supreme Court).  Fourth, as noted previously on ip fray, the Munich Regional Court recently suggested in its decision involving Wilus and Asus that a rate of 10-18% for all SEPs reasonably necessary for operation of a mobile device would be within the FRAND range (see decision here, para. 294:  “Ausgehend von diesem Wert für den wichtigsten Standard (Mobilfunk) liegt die Gesamtbelastung für ein Mobiltelefon für alle für einen sinnvollen Betrieb erforderlichen Standards (Mobilfunk, Wi-Fi, Streaming, etc.) bei ca. 10% bis 18%.”).  For a mid-priced phone, that would be substantially higher than the aggregate royalty the above authors report, assuming that they and the Munich court are talking about the aggregate royalty burden for the same combinations of technologies.  Fifth, even if these are the only decisions available for the purpose of the study, five cases are a small sample, and whether the derived amounts accurately reflect FRAND rates depends on whether the courts in these cases got their numbers right; and some commentators have critiqued the methodology employed in, e.g., Unwired Planet.   Even so, one might be inclined to think that the Munich court’s range seems rather high, all things considered.

Johnson on Assessments of Patent Damages in the U.K.

Phillip Johnson has published an interesting article titled The assessment of damages in patent infringement:  General Tire and a history of uncertainty, 15 Queen Mary J. Intell. Prop. 440 (2025).  Here is the abstract:

A court undertaking an assessment of damages has been a rare thing across most of the history of patent law. The House of Lords decision in General Tire & Rubber Company and Firestone Tyre and Rubber Company [1976] RPC 197 looked like it would provide some certainty. But as an exploration of the archive materials surrounding the Patents Bill shows, contemporaries took an entirely different view of the decision. A historical analysis shows not only the importance of the case but also the confusion it caused and how the proposed remedy of a statutory damages rule might have been worse than the cure.

The article traces the development of U.K. case law concerning patent damages beginning in the nineteenth century.  After enactment of the Patents, Designs and Trade Marks Act 1883, there was a flurry of case law on damages from 1885-1925, after which there were no reported decisions until General Tire in the mid-1970s.  Lord Wilberforce’s speech in that case embraced the framework proposed in Lord Justice Fletcher Moulton’s 1911 decision in Meters Ltd. v. Metropolitan Gas Meters Ltd., to the effect that judges should consider licenses already “granted and the rates of royalty fixed by them, to estimate their relevance and comparability, to apply them so far as he can to the bargain hypothetically to be made between the patentee and the infringer, and to the extent to which they do not provide a figure on which the damage can be measured, to consider any other evidence, according to its relevance and weight, upon which he can fix a rate of royalty which would have been agreed.”  Professor Johnson’s research shows that in the wake of this decision, there was serious discussion of enacting a bill that might have expressly codified a “willing licensor/willing licensee” approach to royalty awards, though ultimately no such bill was passed.  Although the Intellectual Property (Enforcement, etc.) Regulation 2006 reflects IPRED article 13 and does reference “the royalties or fees which would have been due had the defendant obtained a licence,” Professor Johnson states that it “did not change practice significantly.” He concludes that the proposed statutory provision in the 1970s might not have improved matters and that “General Tire remains a precious precedent.”

For what it’s worth, I provide some discussion of General Tire, Meters, and some of the other relevant British cases in chapter 3 of Comparative Patent Remedies and in chapter 4 of my new book, Remedies in Intellectual Property Law.  I will be sure to note the above article in any subsequent editions!

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I've been very busy lately, and will be taking a blogging break next week.  I plan to return the week of February 9. 

Gervais on Territoriality and Global FRAND Rate-Setting

Daniel Gervais, one of the world’s leading experts on the TRIPS Agreement, has published a very interesting article titled The Principle of Territoriality in International Intellectual Property Law and Its Implications for Global FRAND Rate-Setting, GRUR Int. (advance access pdf available here).  Here is the abstract:

The principle of territoriality under which intellectual property (IP) rights exist and are enforced only within national borders sits uneasily alongside the global nature of standard-essential patent (SEP) licensing disputes. In recent years, courts in Brazil, China, Colombia, Germany, India, the United Kingdom, and now the Unified Patent Court have asserted authority, directly or indirectly, to determine worldwide fair, reasonable, and non-discriminatory (FRAND) licensing terms, often without both parties’ consent. These practices, ranging from injunction-driven leverage to comprehensive judicial rate-setting, raise difficult questions about jurisdiction, comity, competition norms, and the coherence of international IP law.

 

This article provides a systematic and comparative analysis of the principle of territoriality in international IP law and its tension with non-consensual global FRAND determinations. It traces the origins and enduring role of territoriality in treaties such as the Paris Convention and TRIPS Agreement, examines its implications for jurisdiction and choice of law, and explains why territoriality remains a cornerstone of global IP governance. It then turns to the distinctive case of SEPs, highlighting the role of standard-setting organizations and the unique licensing challenges they generate. Against this backdrop, the article maps national approaches across key jurisdictions, identifying functional categories (adjudicators, regulators, and leverage providers) and analyzing how their practices interact in transnational disputes.

 

Drawing on recent case law, WTO findings, and comparative treatment of other IP rights, the article argues that non-consensual global FRAND rate-setting undermines the territorial foundation of international IP law and risks destabilizing global markets. At the same time, it acknowledges arguments for efficiency and uniformity, and considers how these objectives might be pursued within a framework that respects sovereignty and due process. The article concludes by proposing both short-term and longer-term solutions, ranging from national court strategies and WTO enforcement to a possible role for WIPO, the US Congress, and the EU, designed to reconcile innovation incentives, market access, and the legitimacy of international dispute resolution.

I may have more comments to follow, but two things leap out to me upon first reading.  One is Professor Gervais’ argument that even the granting of purely domestic injunctions in FRAND cases, as in Germany, effectively albeit indirectly erodes the territoriality principle by “plac[ing] enormous pressure on the implementer to capitulate to the SEP holder’s terms” (p.13).  It might seem to follow from his analysis, then, that to uphold the territoriality principle nations would have to temper their enthusiasm for granting injunctions in at least some cases.  This may be right, though it also may seem a bit paradoxical that upholding the territorial principle under international law, as Professor Gervais understands it, would require nations to temper the use of a remedy (injunctions with domestic effect only, as a legal if not practical matter) that domestic law otherwise would permit in a given case.  (Again, that may be right—the principle seems logically appealing—but I wonder what the limiting principle would be?)  The other thing that caught my attention was Professor Gervais’ embrace of the view that, absent consent by both parties, only domestic courts can adjudicate questions of infringement and validity under domestic patent law.  This is, as previously noted here, the issue at the heart of the pending BMW v. Onesta dispute, in view of the CJEU’s 2025 decision in BSH v. Electrolux (which seems to me to point, whether rightly or not, in the opposite direction).   (Note that the Federal Circuit has temporarily stayed Judge Albright's antisuit injunction from last week, and we are still awaiting Judge Albright's written decision in that case.)

EWHC: Acer, ASUS, and Hisense Are Entitled to Declarations of Interim Licenses

Mr. Justice Mellor's decision in Acer, Inc. et al. v. Nokia Technologies Oy is here.

 

I have grading to complete, after which I will be taking a few days off around Christmas.  Consequently, I hope to have something to say about this complex SEP decision--and about the UPC Court of Appeal's recent decision on damages in Bhagat Textile Engineers v. Oerlikon Textile GmbH & Co KG, and the Federal Circuit's decision yesterday on injunctive relief and willfulness in Wonderland Switzerland  AG v. Evenflo Co.--sometime after January 1.  This has proven to be a busy month!  Anyway, happy holidays to my readers--see you in 2026.

AIPPI 2025 Study Question Q296: Preliminary Injunctions: Requirements for compensating damage suffered by defendant

One of the topics I discuss at some length in other forthcoming book, Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press, forthcoming May 2026), is whether a patentee who obtains a preliminary injunction on the basis of a patent that subsequently is determined to be invalid or not infringed should be obligated to compensate the temporarily excluded defendant for its losses, and if so in what amount.  As I discuss in the book, practice around the world differs in many important respects.  Courts in the U.S. almost always limiting the patentee’s liability to the amount of the injunction bond it is required to post (which amount may turn out, ex post, to be undercompensatory).  The U.K. requires plaintiffs to agree to a cross-undertaking, essentially a contract obligating the payment of compensation in the event the preliminary injunction is thereafter lifted, while the CJEU has given mixed signals regarding what is permitted under EU law (see, e.g., discussion on this blog here).  Anyway, the AIPPI has made available its Resolution, its Summary Report, and the individual reports for 43 members, including not only the U.S. and the U.K. but also China, Japan, South Korea, India, several EU member states, and a smattering of countries in South America, Asia, and Middle East.  Among these members, there is substantial support for a rule that would require, as a general matter, full compensation of the defendant’s actual damages suffered as a result of the wrongly-issued preliminary injunction (as opposed to a more plaintiff-friendly approach that would limit liability to bad-faith assertions), albeit perhaps subject to some mitigating factors.  Whether or not you are an AIPPI member yourself, you can download all of the reports by going to aippi.org, clicking on “Library” and then “Search,” and then typing in “Q296.”

On this same topic, Hans-Jürgen Ahrens recently published an article titled Schadensersatz nach aufgehobener einstweiliger Verfügung wegen nichtigen Arzneimittelpatents—zugleich Besprechung von BGH GRUR 2025, 574—Glatirameracetat (Damages compensation following the lifting of a  preliminary injunction concerning an invalidated medicament patent—As well as case law of the Federal Supreme Court, GRUR 2025, 574—Glatirameracetate).  (The German case itself is related to the European Commission’s investigation of Teva relating to the drug Copaxone, which I have discussed previously here and will also be discussing, albeit briefly, in my forthcoming book.)  Here is a copy of the BGH decision itself, in which the court holds, inter alia, that the infringement defendant seeking to recover its own lost profit caused by the preliminary injunction may not also claim the infringer’s profit in excess of that lost profit—though it leaves open the question whether the defendant could choose to use any of the three methods for calculating its own actual loss, including the patentee’s profit, as the (single) method for estimating its actual loss.  For discussion of a recent British decision rejecting the argument that defendants may recover the plaintiff’s profits, see my previous blog post here.