Lord Justice Richard Arnold has published an editorial titled A Jurisdictionally Neutral Approach to SEP/FRAND Disputes?, 57 IIC 613 (2026). The essay argues that the best solutions to jurisdictional conflict in SEP/FRAND disputes would be, in order, a supranational tribunal; legally enforceable arbitration; and ad hoc agreement to arbitration. In the absence of any of these, the author argues, “the next best thing would be a jurisdictionally neutral approach,” by which he means that “any court of competent jurisdiction faced with an SEP/FRAND dispute reaches the same conclusion”. To this end, he identifies three common principles (while noting that the essay does not aspire “to present a fully developed proposal”): first, that “courts should apply the law which governs the relevant IPR policy” (in the case of ETSI, for example, French law); second, that the provisions of these policies be interpreted to prevent both holdup and holdout; and third, that courts “bear[ ] in mind that a range of terms may be FRAND.” Lord Justice Arnold expresses surprise that few jurisdictions thus far have undertaken to determine FRAND rates, and thinks that more should do so—and that if they followed the three principles, much of the tension among jurisdictions could be reduced.
This is an interesting piece—short and, as the author states, not intended to present a full development—but useful for thinking through what the core principles really are, and speculating how jurisdictions might converge on similar results if they took all three seriously. Still, I wonder how much convergence there would be, given differences of opinion in specific cases over which licenses are relevant comparables; the utility of the top-down approach; and other issues that do not arise in every case but can be important in some of them, such as access-to-all versus license-to-all and the use of the smallest salable patent-practicing unit as the royalty base. Just a few months ago, for example—after the editorial was published—in the Samsung v. ZTE dispute, a Chinese court determined that a six-year FRAND license for the relevant technology would be in the amount of $731 million, while the Munich Regional Court opined that a five-award license would be for $640 million, and the EWHC determined that a five-year license would be $392 million (see my blog post, As Many as Three Incompatible FRAND Judgments Before Breakfast). Another issue is that, at present, some courts are more receptive than others to issuing injunctive relief in FRAND cases, and that possibility obviously impacts strategy in a big way—so for any convergence to take place, we might need to see a change of perspective on that issue, from one that sees FRAND-committed SEPs as just another kind of patent to one that recognizes, as Lord Justice Arnold states in this essay and has stated previously, that every SEP owner and every SEP implementer is, respectively, a willing licensor or willing licensee, as long as the terms are right.
In related news, outgoing U.S. Representative Darrell Issa is quoted in MLex as recommending the issuance of an executive order forbidding U.S. courts from recognizing foreign judgments awarding global FRAND royalties or injunctive relief (“Unless there’s a US patent, unless it’s adjudicated by a US court, we are not going to respect foreign [court orders]”). I’m not sure if there have been cases in which foreign courts have issued injunctions against the use of U.S. patents in the U.S., but Congressman Issa may have in mind the English courts’ practice of compelling implementers to choose between a domestic injunction and acquiescence in the court’s determination of global FRAND royalties. Another possibility he may have in mind is that a court might award specific performance of the global license it determines to be FRAND (see my May blog post above), which I suppose would have extraterritorial impact even if directed only against a party over whom the court has personal jurisdiction. Or maybe I'm just missing his point altogether. In any event, I thank Rochelle Cooper Dreyfuss for bringing this development to my attention.
