Interesting Question on the Relevance of Profits Earned on Sales of Noninfringing Goods

As I mentioned on Wednesday, after I return from my last little summer trip next week, I plan to write at least a couple of posts analyzing the recent decision of the Court of Appeal for England and Wales in Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964, concerning the relationship among disgorgement of infringers’ profits, causation, noninfringing alternatives, and apportionment.  Before I go, though, I thought I would note another matter also relating to infringers' profits that was mentioned this morning on the ip fray blog, namely an order entered on August 11 by the UPC’s Munich Local Division in Edwards Lifesciences Corp. v. Meril GmbH.  In an earlier proceeding, the defendant Meril was found to have infringed Edwards’ EP No. 3 669 828, relating to a transcatheter heart valve.  The remaining questions yet to be decided concern monetary relief for the infringement.  The order anticipates a hearing next month concerning, inter alia, the extent to which the defendant may be ordered to “open its books” to the plaintiff, which in turn may depend on resolution of the other two issues.  One is whether UPC or national law applies to infringement that occurred prior to the date the UPC entered into force.  In March 2025, the Mannheim Local Division concluded that UPC law applied (see discussion on this blog here and here), so it will be interesting to see whether or not the Munich court follows this approach if the parties themselves do not reach agreement on this issue or settle.  The other issue concerns whether the court may take into account profits the defendant made on noninfringing products that the defendant offered as a substitute for the infringing products that were taken off the market.  From the order:

The judge rapporteur [Dr. Matthias Zigann] explains that, if this case is not settled or goes to the PMAC [Patent Mediation and Arbitration Centre], it will require a decision from the Court of Appeal. This is because, for the first time, the UPC will need to define the details of a claim for damages and the accompanying claims to open the books with regard to non-infringing products. Although there is some national case law, the situation at hand has not, it seems, been decided: the replacement of an infringing product by a non-infringing product during the lifetime of the patent, and the patent owner's claim that the profits with this non-infringing product must be taken into account when calculating damages. . . .

 

The judge-rapporteur shared his preliminary assessment of the main legal question of whether profits from non-infringing products could be taken into account when calculating damages, and whether they could therefore be subject to an 'open the books' application. He gave an example: A department store advertises an infringing product, 'A'. A customer sees the advertisement and visits the department store to buy the infringing product “A”. However, the product has been taken off the shelves in the meantime due to a court order. The salesperson sells the customer a non-infringing product, "B", instead. In this situation, the profits made from selling product “B” can be attributed to the patent infringement, the patent-infringing offer. In the present case, it may be necessary to take into account the profits made from non-infringing products that replaced the infringing product in open tenders. However, if the link to the sales of the non-infringing products is more tenuous, this might be viewed differently.

This is a very interesting issue.  I’m inclined to think that, although there is a causal connection between the profits earned on sales of the noninfringing substitutes and the earlier offer for sale of infringing products, that causal connection should be viewed as too attenuated.  (My understanding of German law, should that factor into the mix, is that it doesn’t have a proximate cause doctrine as such, but that German courts employ the concept of haftungsausfüllende Kausalität to cut the causal chain where damages are too remotely connected to the wrongful act.)  Under U.S. utility patent law, there is no disgorgement of the infringer’s profits, so I don’t think this precise issue would come up (unless it were somehow relevant to determining a reasonable royalty, which seems a bit of a stretch).  According to Rite-Hite Co. v. Kelley Corp., 56 F.3d 1538 (Fed. Cir. 1995) (en banc), however, infringers can be liable for lost profits on sales of noninfringing goods that compete with infringing products—but not for lost profits on sales of noninfringing complementary products that the patent owner ordinarily sells along with the patented article, unless they “function together with the patented component in some manner so as to produce a desired end product or result” and are therefore “analogous to components of a single assembly or be parts of a complete machine, or . . . constitute a functional unit.”  I think that logic would exclude the recovery of the infringer’s profits on noninfringing goods, even if U.S. law otherwise permitted disgorgement in utility patent cases.  Of course, UPC law or domestic national law within the E.U. could chart a different path.

Court of Appeal for England and Wales Issues Important Ruling on Disgorgement of Profits

The decision, which I just became aware of today though it was released on July 27, is Lufthansa Technik AG v. Astronics Advanced Electronic Systems, [2026] EWCA Civ 964.  The principal opinion is by Lord Justice Arnold, in which Lord Justices Lewison and Nugee concur.  Lord Justice Lewison also writes a separate opinion, in which Lord Justice Nugee concurs, and Lord Justice adds a very short separate opinion of his own.  The decision is long (92 pages altogether, with 353 paragraphs), and while the principal topic is the principles applicable to awards of infringers’ profits (including the relevance of noninfringing alternatives, but-for and proximate causation, and apportionment), the case also presents issues relating to double recovery and prejudgment interest.  Lord Justice Arnold’s opinion cites some of my work, as well as work by Professor Norman Siebrasse and a chapter I coauthored (with Siebrasse, Chris Seaman, Brian Love, and Masabumi Suzuki) that was published in the edited volume Patent Remedies and Complex Products (Cambridge Univ. Press 2019). Rather than rush to get something out, I want to do justice to this important and thoughtful decision, and I suspect that doing so may require two or three separate, rather detailed, blog posts.  For today, then, I’m simply providing the link to the decision (above) for readers who have not read it yet but are interested in the relevant topics, and will summarize what I view as the three most important holdings, all pertaining to disgorgement of profits.  The first is that “there are some cases in which it is possible to say that all of the profits in issue are derived from the infringement” (para. 159).  The second is that a “differential profits analysis”—under which the profits attributable to the infringement are measured by the difference between the profits the infringer actually earned and the amount if would have earned in the counterfactual world in which it deployed the next-best available noninfringing alternative to the patented invention—can in some cases be “a useful tool to identify the profits derived from the infringement” (para. 160), but that there are numerous difficulties concerning its use in the real world (see paras. 150-58).  The third is that “there is a well-established alternative to differential profit analysis, which is for the court to make a fair apportionment of the profits in issue,” and that “[t]his approach is to be adopted when the case does not fall into either of the [preceding] two categories . . . that is to say, it is not a case where all of the profits are derived from the infringement or where a differential profit analysis can readily be undertaken” (para. 161; see also para. 111, describing apportionment as "normally the appropriate approach").  The opinion then goes on (starting at paragraph 191) to discuss some principles relating to how apportionment may be carried out.

Again, this is a very important decision on one of the most practically and intellectually challenging topics in all of IP remedies law.  My plan is to return with a detailed, probably multipart, analysis, probably starting the week after next (I will be away for one more little summer jaunt next week).  

Federal Circuit Reaffirms No Presumption of Irreparable Harm

The case is Socket Solutions, LLC v. Import Global, LLC, a short precedential opinion by Chief Judge Moore (joined by Judge Prost and District Judge Seeborg) handed down last Tuesday.  Plaintiff Socket Solution “owns U.S. Patent No. 9,509,080, which is directed to an indoor electrical

wall outlet cover that permits use of a wall outlet while concealing the outlet contact openings” (p.2).  “Socket Solutions sued Import Global, alleging Import Global’s Neat Socket product infringed claim 19 of the ’080 patent, and moved for a preliminary injunction” (id.).  The district court granted the preliminary injunction, but the Federal Circuit reverses and remands.  In particular, the appellate court concludes that the district judge erred in construing two terms (“backplate” and “pin”) used in claim 19, and therefore vacates and remands for further consideration on the issue of “likelihood of success on the merits” (pp. 5-9).  Of greater interest, however, to the law of remedies, is the appellate panel’s discussion of irreparable harm:

Because we remand to the district court on the likelihood of success factor, we do not reach Import Global’s irreparable harm arguments. We hold only that the court erred to the extent it relied on a presumption of irreparable harm when a clear showing of patent validity and infringement has been made. . . . We note that this presumption cannot be justified after eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393–94 (2006).

 

In eBay, the Supreme Court reversed a grant of permanent injunction where the appeals court applied a “general rule” unique to patent disputes “that a permanent injunction will issue once infringement and validity have been adjudged.” 547 U.S. at 393–94 (citation omitted). The Supreme Court explained that patent disputes are no different than in other cases governed by the “traditional principles of equity,” and thus the traditional four-factor framework should apply. Id. After eBay, we confirmed the presumption of irreparable harm was abolished as it applied to determining injunctive relief. Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011) (“We take this opportunity to put the question to rest and confirm that eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief.”). Although eBay and Bosch involved permanent injunctions, we see no reason to depart from their holdings in the preliminary injunction context.

 

It is not clear here that the district court applied the presumption of irreparable harm to its fact findings rather than simply note there is such a presumption. . . . In any event, the court may analyze irreparable harm in a manner that does not rely on the presumption, if it reaches this issue on remand (pp. 9-10).

By itself, the above discussion is pretty unremarkable, inasmuch as it merely reaffirms the Federal Circuit’s long-standing understanding of eBay, albeit in the context of preliminary relief.  The absence of a presumption of irreparable harm nevertheless remains a fraught issue, with Collision Communications having argued (unsuccessfully) before Judge Gilstrap, and more recently before the Federal Circuit (where the matter remains pending), that it is entitled to such a presumption because that would have been the practice in courts of equity in 1789, and under Trump v. CASA federal courts are obligated to apply the law of equity as it would have been understood as of that time.  For previous discussion on this blog of Collision Communications v. Samsung, see here; for recent discussion of the pending appeal, see the write-up last week on Patently-O, here.  My own long-standing view is that, while the eBay opinion is not a paragon of legal reasoning, the eBay standard remains a necessary tool, at least in U.S. practice, for reducing the harms resulting from patent holdup.  I also wonder whether, doctrinally, even if U.S. courts are obligated to apply the standards that a court of equity would have applied in 1789 (sigh), if a district court today can award post-judgment reasonable royalties but could not have done so in 1789 absent proof of an established royalty, that should render the presumption of irreparable harm nugatory--or does that argument only work if ongoing royalties are characterized, contrary to current Federal Circuit case law, as a form of legal relief authorized under 35 U.S.C. § 284?  See pp. 1162-63 of this paper; cf. Plaintiff’s Brief at p.53, citing an 1887 Supreme Court decision (McConihay v. Wright) for the proposition that “The adequate remedy at law, which is the test of equitable jurisdiction in [federal] courts, is that which existed when the judiciary act of 1789 was adopted, unless subsequently changed by act of congress”).

Tomimoto, Osuga, and Suzuki on Japanese SEP Litigation

Koji Tomimoto, Shigeru Osuga, and Mitsuhiro Suzuki have published an article titled Japanese SEP litigation--from the 2014 Grand Panel decision to the 2025 Tokyo District Court's Pantech v. Google Case, 5/2026 GRUR Patent, pp. 239-43.  Here is the abstract:

This article traces Japanese SEP/FRAND litigation from the 2024 Grand Panel decision in Apple v. Samsung, which set such a high bar for finding an "unwilling licensee" that it caused an eleven-year stagnation in Japanese FRAND disputes, to the Tokyo District Court's June 2025 judgment in Pantech v. Google, the first case in Japan in which an injunction against a FRAND-declared SEP was granted.  The court found Google to be an unwilling licensee based on its refusal to disclose sales data and engage constructively in court-mediated settlement discussions.  This article explains the judgment as a significant step toward aligning Japanese practice with global FRAND standards, which is further reinforced by the new Litigation and Mediation Protocols published by the Tokyo District Court in January 2026. 

For previous discussion of Pantech on this blog, see my post "FRAND in Japan" here. 

Also in this issue of GRUR Patent are an essaye by Dr. Henrik Holzapfel titled Die extraterritoriale Durchsetzung von Patenten—vom Kuriosum zum Königsweg? (Extraterritorial Enforcement of Patents—from Curiosity to Royal Road?"), and an article by Katalin Tözsér, Florian Schweyer, and Oliver Schön titled Europäische Gerichte als «worldwide super infringement courts« (“European Courts as ‘Worldwide Super Infringement Courts”).  I have not read these yet, but since I am writing about extraterritoriality I plan to, and may have some comments here in due time.  The issue also includes an article by Oliver Bäcker and Marc Berninger on the Munich Landgericht's January 8, 2026 decision in the FRAND dispute between Wilus and Asus, concerning, inter alia, the defendant's obligation to provide security. 

*                    *                    *

I will be taking a blogging break next week.  

The UKSC Decision in Tesla v. InterDigital

Yesterday the U.K. Supreme Court handed down its decision in Tesla, Inc. v. InterDigital Patent Holdings, Inc., [2026] UKSC 27.  The Court held, inter alia, that (contrary to the majority view of the Court of Appeal) there is a "serious issue to be tried" whether SEP owners' obligations to license their SEPs on FRAND terms applies to an offer to license those patents jointly through a platform, such as Avanci.   Other sources, including ip fray, JUVE Patent, Patently-O, and Kluwer (one by Matthieu Dhenne, and another by Naomi Hazenberg and Patrick Newlands) already have written about yesterday’s decision in some depth, so I don't see any reason to present a detailed summary here.  I will simply note that the Court's principal justification is that there is no apparent "basis for concluding that the FRAND obligation ceases to apply if two or more owners choose to offer a licence of their patents through or using a licensing agent appointed for that purpose" (para. 84), and that "the utility of the FRAND obligation would be severely compromised were it to cease to apply in circumstances such as these" (para. 85).  In other words, there is an serious issue to be tried whether Tesla is correct in asserting that "joining a pool or platform does not release the SEP owner from the FRAND obligation it has already undertaken" (para. 89).  From this, it further stands to reason, in the Court's view, that Tesla has a "real prospect of establishing" at trial that a FRAND license pertaining to the relevant U.K. SEPs would be a platform license at a FRAND rate (para. 95).  Tesla therefore has a "real prospect of securing the declaratory relief it seeks in the Licensing Claims against InterDigital" and against Avanci, as agent for the individual SEP owners (paras. 131, 132).

I am of two minds on this case.  As I wrote last year in my (fairly detailed) discussion of the Court of Appeal decision in this case, on the one hand an affirmation that an English court has jurisdiction to determine a pool rate for the entire world seems pretty breathtaking, especially given that the UK SEPs comprise a decidedly small portion of the overall portfolio.  On the other hand, the Supreme Court has a point when it says that "the existence and operation of . . . pools and platforms of SEPs, without the possibility of court scrutiny of the pool or platform rates, would seriously undermine the effectiveness of the FRAND obligation of the SEP owners" (para. 138).  Like the court, I am not convinced that the bilateral licensing option necessarily constrains the pool from charging an above-FRAND rate.  I have suggested previously that, if the transaction costs savings from licensing through the pool are substantial, licensees may prefer the rate charged by the pool to bilateral licensing, even if the rate is non-FRAND.  (See the last paragraphs of my March 10, 2025 post for why I think this is so.  One thing I did not take into account there, however, is the possibility that the pool rate might be lower than the non-pool rate because pooling reduces the risk of royalty stacking.  That doesn't necessarily change my overall conclusion, though.)  Moreover, the licensors' representation that the pool will charge a FRAND rate can be a factor in determining that the pooling arrangement does not violate antitrust law; but if so, that would seem to suggest that some institution must have jurisdiction to determine if, in fact, the pool's terms are FRAND.  Perhaps the matter could be left to antitrust enforcers in the U.S., the E.U., or elsewhere, but they may have little incentive to do engage, once the pool is up and running, in comparison with prospective licensees such as Tesla.  That said, we still come back to the questions of whether the English judiciary is the right institution to make this determination for effectively the entire world; and if so, whether we can be reasonably confident that its determination will be correct. 

Federal Circuit Vacates Preliminary Injunction in a Schedule A Case

Some readers may not be familiar with Schedule A litigation in the United States.  The two leading scholars who write about it are Professors Sarah Fackrell and Eric Goldman, whose work on the topic I recommend.  Citing their work, however, I did mention the phenomenon in my recent book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), where at page 103 n.160 I wrote that the majority of Schedule A cases

 

involve allegations of trademark or design patent infringement, though some allege violations of copyrights or of utility patents. The typical case involves an owner who files a complaint and a motion for an ex parte temporary restraining order, often under seal, against multiple, often foreign, defendants, who are identified in an accompanying list, often referred to as “Schedule A.” The papers allege that the defendants are offering allegedly infringing products for sale online. Over the past decade or so, several U.S. judges have granted these motions, notwithstanding the difficulties (especially in design and utility patent cases) of determining on the basis of ex parte, preliminary evidence that the accused products infringe. The orders are then forwarded to the online platforms on which the defendants are offering merchandise for sale, after which the platforms typically make the accused products,and sometimes all of a defendant’s products, unavailable, sometimes for longer than the fourteen days that a temporary restraining order is supposed to last. Judges also have issued asset-freezing orders, sometimes in cases in which such orders are not permitted under U.S. law. . . . Given the cost of litigation, the end result is often that defendants either settle or default. Plaintiffs may voluntarily dismiss their claims against those who do not settle or default, and those parties may be eligible for compensation in the amount of the injunction bond; but they are not automatically awarded their fees, and U.S. courts can be reluctant to award litigation sanctions.

Anyway, a precedential decision handed down yesterday, Shenzhen Jisu Tech. Co. v. The Entities and Individuals Identified in Annex A, is an appeal from the dissolution of an earlier-granted preliminary injunction in one such case (majority opinion by Judge Hughes, joined by Judge Prost; partial dissent by Judge Stoll).  The appellant Shenzhen owns U.S. Design Patent No. D886,982, for a design for a foldable fan.  Shenzhen asserted the patent against several entities identified in a Schedule A and obtained a TRO; but some of the defendants appeared to oppose converting the TRO into a preliminary injunction, arguing that Shenzhen was unlikely to succeed on the merits of proving infringement.  The district court nevertheless granted the preliminary injunction.  The defendants thereafter moved for reconsideration, pointing to the recent issuance to a third party of U.S. Design Patent No. D1,046,104, for a foldable fan.  Specifically, defendant

 

Zhouty argued that because novelty is a requirement for patentability, the patent examiner must have concluded that the ’982 patent’s design did not anticipate the ’104 patent’s design—otherwise, the ’104 patent would not have issued. And, because the test for design patent infringement and the test for anticipation are identical, the conclusion that the ’982 patent does not anticipate the ’104 patent would suggest that products practicing the ’104 patent’s design do not infringe the ’982 patent. Together with the representation that the ’104 patent protects the exact design of Zhouty’s accused product, Zhouty argued that the ’104 patent’s issuance suggested there is some material and patentable difference between the design of its accused product and the design protected by the ’982 patent. Zhouty suggested that this undermined the likelihood Shenzhen would succeed in its infringement action, which in turn undercut its entitlement to a PI (pp. 4-5).

The district court denied the motion for reconsideration, after which Shenzhen added some five defendants to the litigation and moved for another TRO.  The new defendants appeared and made the same argument that Zhouty had made in its motion for reconsideration.  This time, the district court was persuaded, and it dissolved the already-issued PI.

On appeal, Shenzhen argues that collateral estoppel should have precluded the district court from reconsidering the matter, but the Court of Appeals rejects that argument to the ground that collateral estoppel does not apply to earlier, nonfinal decisions within a continuing case (p.7).  The court also rejects the argument that the district court had applied a rule requiring the owner to prove the invalidity of a relevant, later-issued patent; “[r]ather, we understand the district court to have assessed the strength of Shenzhen’s infringement claim via an analysis rooted in this court’s caselaw holding that anticipation and infringement are the same inquiry for design patents” (p.9).  More specifically:

To assess the likelihood Shenzhen would succeed on its infringement claim, the district court was required to preliminarily apply this court’s test for design patent infringement—the ordinary observer test. This test asks whether, “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.” Gorham, 81 U.S. at 528. As noted, the district court was correct when it observed that, in the case of design patents, the test for anticipation and infringement are the same. . . . Thus, if an ordinary observer would view two designs as substantially the same, the later design is anticipated, and an accused product practicing its design would infringe any patent claiming the earlier design. See Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889) (“That which infringes, if later, would anticipate, if earlier.”). By extension, when a design patent issues over an earlier one, the presumption of patent validity suggests that the later claimed design is not anticipated by—i.e., not substantially the same as—the earlier patented design. . . . Indeed, by statute a patent is presumed valid once issued, and included within that is a presumption that its claimed design is novel and thus not obvious or anticipated. . . .

 

We see no abuse of discretion in the district court’s application of these themes to the facts before it as an aid in estimating the likelihood that Shenzhen would succeed in its claim for infringement. Because the accused products were purported to be coextensive with the later-issued ’104 patent, the district court was within its discretion to note that the ’104 patent’s issuance may suggest that an ordinary observer would not find the accused products substantially similar to the design claimed by Shenzhen’s ’982 patent (p.10). 

Judge Stoll dissents on this last issue, writing that “the district court applied a shortcut to its analysis by assuming that, because the relevant defendants asserted that their accused product practices another, later-issued design patent (which is presumptively valid), Shenzhen had failed to who a likelihood of infringement of its asserted patent” (dissent p.3).  Judge Stoll would vacate and remand for the lower court to apply the three-way test “comparing the accused product, the patented design, and the prior art” (id.).

Some Recent FRAND-Related Papers

1. Kung-Chung Liu and Rui Li have published A Critique on WT/DS611 Panel and Arbitration: To Better Understand Chinese Courts, Anti-Suit Injunction, and TRIPS, 2026 GRUR Int. (Advance Access Publication June 25, 2026).  Here is the abstract: 

More and more often, parties and national courts are resorting to anti-suit injunctions (ASIs) to deal with the issues caused by parallel proceedings disputing the fair, reasonable, and non-discriminatory licensing of standard essential patents. Recent and sporadic ASIs issued by Chinese courts have led to a dispute between the EU and China before the WTO. The Panel report and arbitration award touch upon the term ‘give effect’ Art. 1(1), first sentence of TRIPS, and the territoriality principle embedded in intellectual property treaties, and therefore can be consequential for the dispute settlement mechanism of the WTO and the understanding of TRIPS. The arbitration also reveals alarming misperceptions about how Chinese courts, especially the Supreme People’s Court (SPC) and its IP Tribunal, operate. This Opinion will address these three issues. It will first summarize the findings and reasonings of the Panel and the arbitration to set the stage, explain how the SPC, not its IP Tribunal, normally regulates through written policies to dispute the existence of a so-called ‘unwritten’ ASI policy, and persuade that even there were such an ASI policy, it is an autonomous judicial policy, well grounded, non-binding on lower courts, defensively applied, well-reasoned, settlement-conducive, and should be welcomed. This Opinion then argues that the ordinary meaning of ‘give effect’ does not allow the expansive reading by the arbitration; and that such a reading would also be an unacceptable deviation from the territoriality principle. 

2. Peter Slowinski and Fabian Hoffmann have posted a paper on ssrn titled Third-Party Determination of Interim Licenses and Security Payments: A German Approach to the Huawei Framework.  Here is a link to the paper, and here is the abstract:

 

Litigation of Standard Essential Patents (SEPs) takes place in Europe within the framework provided by the CJEU in its landmark decision Huawei v. ZTE. However, Courts in Europe are still struggling to find the best approach for the resolution of these disputes. German courts and the UPC rely on competition law and a determination of whether the parties have been willing to conclude a license. British courts focus on the setting of license terms but their approach is not entirely convincing, either. This article shows an alternative way forward based on instruments from German civil law that use third-party determination of contract terms. It combines these instruments with a preliminary calculation of a security and down-payments to provide parties with an interest-oriented way forward. The proposed third-party determination of FRAND terms is deliberately not a final determination but limited to the interim period before a final agreement. This preserves the autonomy of the parties while supporting them in the settlement process and it does not affect the right to be heard in court. Moreover, the obligation to demonstrate willingness to grant or take a license entails the necessity not to reject the other party's proposal for a third-party determination for the interim period. And in infringement proceedings it increases the pressure to negotiate constructively to reach a FRAND compliant agreement. While the method is based on German civil law, it is transferable to other legal systems and can be equally applied in the Unified Patent Court. 

3.  Enrico Bonadio and Arjun Solanki also have posted a paper on ssrn, titled Reinvigorating Competition Law in SEP Litigation: Towards a More Balanced UK Framework for Standard Essential Patents.  Here is a link, and here is the abstract:

 

The United Kingdom has become a leading forum for adjudicating standard essential patent (SEP) and fair, reasonable and non‑discriminatory (FRAND) disputes, yet competition law has played a strikingly marginal role in this jurisprudence. Despite EU enforcement practice on SEPs and abuse of dominance, no UK court has issued a standalone competition law decision in a SEP case and the Competition and Markets Authority (CMA) has not opened any SEP‑focused investigation. This article offers a systematic account of this “competition silence”, showing how institutional incentives, evidential burdens and post‑Brexit doctrinal uncertainty have channelled disputes into contractual FRAND rate‑setting and left Chapter II of the UK Competition Act effectively dormant. It argues that FRAND adjudication is an incomplete substitute for competition enforcement: retrospective, bilateral and ill‑suited to addressing market‑wide harms such as supra‑FRAND royalties, coercive injunctions against willing licensees and exclusionary licensing practices. Against the backdrop of the withdrawn EU SEP Regulation, the pending Supreme Court appeal in Optis v Apple and the CMA’s expanded powers under the Digital Markets, Competition and Consumers Act 2024, the article contends that the UK is at an inflection point in SEP governance and advances a calibrated reform agenda to reinvigorate competition law’s role while complementing judicial FRAND.