Samsung may get UK interim license declaration in ZTE case next week: sole issue is whether UK judiciary has slightest respect for China

Did the judge come across as biased?

There is a clear jurisdictional bias, but not a party-specific one.

There is no reason to assume that Mr Justice Mellor is more sympathetic to Samsung (than to ZTE) as a company.

It is also important to consider that he is bound by the (partly outrageous) case law of the England & Wales Court of Appeal (EWCA). In fact, even ZTE accepted that fact and merely preserved certain arguments for an appeal, recognizing that the EWHC has to apply the EWCA’s case law.

That said, one would normally expect a neutral arbiter to be at least a little more skeptical of Samsung’s tactics. Just the fact that Samsung is raising parallel FRAND issues in three jurisdictions (May 28, 2025 ip fray article) would give many judges pause. Put differently, a judge whose agenda is not to grow the docket but to focus on the most important job of the judiciary, which is to resolve actual disputes when it is necessary, would have pressed Samsung’s counsel really hard on the question of why they are coming to the UK with this in the first place. Samsung will almost certainly have to explain that in the U.S. proceedings. In the UK, however, there is now a judicial attitude that any standard-essential patent (SEP) case that gets filed there is welcome, and anyone who doesn’t want to litigate FRAND (fair, reasonable and non-discriminatory licensing) issues in that country is, by definition, an unwilling licensor, no matter how overwhelmingly strong the reasons for that may be.

U.S. judges would also decline an invitation to render an advisory opinion. But that is, again, because they have too many other things on their plate. Being a UK patent judge in the post-BSH Hausgeräte era (where EU courts, including the Unified Patent Court (UPC), will increasingly grant injunctive and monetary remedies relating to the UK parts of European bundle patents) is a different situation from that of a U.S. federal judge. U.S. district judges are generalists and have to manage dockets ranging from criminal cases to commercial disputes. Specialized courts have the advantage of acquiring a lot of knowledge in a given field, but the downside is that they can become captive courts in a way.

There is nothing objectively meaningful, much less useful, for the UK judiciary to do here, other than some judges trying to keep themselves busy, And if that is all that judges want, they will accept extreme absurdities. They will gloss over the fact that a party contradicts itself (Samsung argued only a few years ago in a dispute with Ericsson that China was the best jurisdiction for their FRAND dispute). And they will not even think about how their peers in other jurisdictions may respond. That attitude led to Unwired Planet v. Huawei in the first place and has enabled UK SEP jurisprudence to hit one new low after the other in recent years.

ZTE’s strategy: reduce dispute to just one question (which then comes down to comity)

There are cases where there is no controversy in a legal sense even though the parties don’t agree on much. This is such a case:

SEP holders are never really interested in interim licenses. It is one of the fundamental misconceptions of the EWCA (like the economic equivalent of 1+1=3) that they failed to see what a SEP holder really needs: actual and recognizable revenues. Anything else just turns a patent owner into the other party’s bank for the purpose of deposit, which is unprofitable. Publicly traded companies need recognizable revenues; the same applies to any privately held company with institutional investors; and in any event, if you receive money on a potentially refundable basis, you can’t do anything useful with it.

The argument came up during the Samsung v. ZTE hearing that some SEP holders make an effort in Indian patent infringement proceedings to secure “pro tem” security payments. We reported on a Dolby v. HMD dispute where that was the case (March 20, 2025 ip fray article). But that is not because it is a SEP holder’s first (or even second or third) choice. Indian patent litigation is notoriously slow, and the only sort of remedy available in the short term is this one. It is not even that those payments are useful to the patentees themselves. The only benefit is that there is a cost to the implementer: instead of having a completely free lunch for a few years, they at least see a bit of a liquidity impact, which may make them more willing to settle. That’s all, seriously.

ZTE has not made any effort to require Samsung to make interim payments. But ZTE offered one, subject to Samsung accepting to be bound by a Chinese FRAND determination. It was therefore disingenuous for Samsung’s counsel, Daniel Alexander KC, to say at the beginning of his opening argument that both parties agreed there “should be” some sort of an interim license. If someone just tries to avoid or narrow a dispute, it doesn’t mean that one thinks anything “should be” the case or “should be” put in place. And that was not the only ridiculous claim he made during the hearing, but nothing will be ridiculous in the eyes of a judiciary that just doesn’t care as long as you are the one raising a claim that potentially means more “business” for those captive, agenda-driven judges who don’t even seem to think about the longer-term consequences of what they are doing.

The Samsung v. ZTE situation is simply that ZTE would rather grant an interim license and leave the determination of FRAND terms to the Chinese courts than duke it out in the UK. That is why ZTE was prepared not only to make such an offer, but continued to moot one Samsung argument after the other. There may be, based on a (heavily redacted) footnote in ZTE’s skeleton argument, a secondary dispute over the exact scope of the interim license, and ZTE says that an interim license should have an undisputed scope.

The real difference is just that the interim license Samsung is pursuing through blatant forum-shopping (in a new variant that could be described as “forum binge-shopping”) forces ZTE to submit to UK jurisdiction while the interim license ZTE offers only in an effort to stay out of an unsuitable jurisdiction says “Chinese courts” where Samsung wants “the English courts.”

Litmus test for UK interim license jurisprudence

The net effect of ZTE having narrowed the dispute to the question of “FRAND in China” (which Samsung once argued was the way to go) or “FRAND in London” is that there isn’t even an objective controversy. This would be yet another reason for which U.S. courts would give serious consideration to an outright dismissal of a case.

Samsung’s counsel still makes it sound like ZTE was doing anything “disruptive,” but that is as untrue as his mischaracterization of ZTE’s position being that there “should be” some sort of interim license. It appears that he wants the UK courts to now determine that if there has previously been a license agreement between two parties, the next step should be an interim license, and that interim license must then amount to a submission to UK jurisdiction even if a company doesn’t even have a significant UK presence.

Should that be part of the reasoning for an interim license in this case, it would be downright preposterous.

Samsung’s sous-entendre (and self-contradictory) attacks on the Chinese courts

One of Mr. Alexander’s habits is to chuckle once or twice per sentence. He may think it’s funny, but it’s actually annoying. He does it at conferences and he does it in open court.

With that rhetorical tool, which he overuses by a huge factor, he tried to deliver a message between the lines: the Chinese courts will side with ZTE, and the UK must come to the rescue of the principle of fairness and neutrality.

The bottom line of everything he said was highly offensive to China, and one must wonder whether Samsung’s IP litigation department is actually acting in the interest of the company at large by pursuing such tactics. Samsung has major business interests in China. Promoting sinophobia is not in Samsung’s interest, but it can happen in large corporations that some people prioritize their short-term tactical gain over the wider organization’s long-term strategic interests. And some companies are better than others at ensuring consistent messaging.

What Samsung and its counsel obviously want to achieve is that the court ruling will give lip service to comity. They tried hard to persuade Mr Justice Mellor that the UK judiciary is the greatest blessing in this world or at least a far better place than China to arrive at a correct result. They hope that sinophobia will influence his thinking, and that in the end, however, he is not going to say “I agree with Samsung that China sucks” but rather something like “oh, I reeeeeaaally respect China, but I just have to agree with Samsung anyway.”

Mr. Alexander KC said the following:

“This outrage [over Samsung discrediting the Chinese courts] was misplaced. It is not us making that point – it is reflected in international practice.”

That is as intellectually dishonest as it gets, and how can one consider a lawyer credibly after he says so? His own client went to China in the Ericsson dispute and told courts in the U.S. that this was the right thing to do.

If there is an even more fundamental question in this dispute now than whether the FRAND determination in question should be made in the UK or in China, it’s whether the UK judiciary is going to buy just about anything to usurp jurisdiction.

Practical implications: pointless advisory opinion or could there be something more?

There is one question that is the big elephant in the room no one wants to talk about (but we do regardless):

Are all those interim license declarations in the UK just occupational therapy for the judges and good for the lawyers, but good for nothing else? Or is there something more to it?

Only because Panasonic granted Xiaomi an interim license after a merely declaratory judgment doesn’t mean that everyone will do so. In fact, Ericsson declined to do so in its dispute with Lenovo (March 31, 2025 ip fray article), and that one settled in a situation where there were developments in various jurisdictions (particularly in the Americas) (April 3, 2025 ip fray article). The Panasonic case was special because Panasonic had originally told the UK judiciary it was going to grant Xiaomi a license on terms to be set by the English courts, and Xiaomi then accepted that proposal. It would have been wiser for the UK judges to limit interim licenses to such outlier cases, but instead they have been on an expansive trajectory and unreasonableness could reach new heights now.

Sooner or later, there will be the next Ericsson: a party that says “OK, we take note of your interim license declaration, but we won’t do it.” That next Ericsson could be ZTE, a company that doesn’t have any significant business interests left in the UK.

What is the “useful purpose” then? They obviously come up with all sorts of far-fetched theories in the UK as to why those declarations will serve a “useful purpose.” It’s just that none of those theories has recently made sense.

So the next Lenovo, which could be Samsung in this case, might try something more. They might try to somehow force the SEP holder to grant the license. What they could always do in theory is to bring a damages claim later. But that’s not what implementers want. They want those interim licenses to be granted. They want to turn everyone into a Panasonic even if they didn’t do what Panasonic had done before them.

U.S. courts consider mere advisory opinions a waste of court and party resources, and rightly so. But tell that to a captive judiciary that just wants to get cases of a certain category and will stretch the envelope for that reason.

Now, what would happen if the UK courts actually tried to force ZTE to grant an interim license after a hypothetical declaration that the latter is entitled to it? It’s a very relevant question because sooner or later something like that will happen. If not in this case, then in some other case.

The courts in other countries are not going to take it lightly.

Time for a new Boxer Rebellion to put the UK in its place?

At the moment there are two attacks in and by the UK courts on Chinese jurisdiction: Samsung v. ZTE and MediaTek v. Huawei. It’s like history repeating itself. In 2020, the UK Supreme Court decided a pair of cases raising the question of whether the UK should set global FRAND rates even if there isn’t a strong economic connection with the UK. The defendants were the same, but at the time they, in their role as major implementers, were defendants to infringement actions while they are now defending against FRAND claims brought by implementers. That pair of cases consisted of Unwired Planet v. Huawei and Conversant v. ZTE.

In the aftermath of Unwired, Chinese courts decided to do the same, but to the effect of obligating SEP holders to grant licenses. And there were antisuit injunctions. The EU brought a World Trade Organization complaint that went nowhere (and later filed a second one) (April 23, 2025 ip fray article). The Munich I Regional Court then developed its pre-emptive strike doctrine and ordered anti-anti-anti-antisuit injunctions.

It would be naive for the UK courts to believe that China is just going to accept whatever some judges obsessed with attracting SEP cases are going to dish out.

From the outside, it appears that the most logical thing would be for China to respond again. To be clear, China can ignore advisory opinions that are just a waste of time and money. But at the point where anyone tries to put serious pressure on companies to grant those licenses, something may happen. It would only be logical for something to happen.

China has a long-standing history with British imperialism. It fought back. The Boxer Rebellion is an example. And at the time China was sort of the underdog. Now it is just the other way round:

The UK is a relatively small country with major problems while China is a huge and wildly successful country.

Sadly, the only successful UK smartphone business in history is the organized crime operation that snatches one phone from someone’s hands in London every six minutes according to official Metropolitan Police statistics (August 9, 2023 BBC article). In pure economic terms, that “startup” would be a unicorn.

China is vastly more powerful and important than the UK by nearly every major metric: economic size, industrial capacity, trade influence, military strength, population, and increasingly, global soft power. While the UK remains a significant global player, China’s scale and momentum ensure its dominance and rising centrality in world affairs. The following table, generated with Perplexity AI, compares the two:

Metric	China	United Kingdom
GDP (2024/25)	~$14.7 trillion	~$2.8 trillion
Population	~1.4 billion	~66 million
GDP Growth (2025 Q1)	5.4%	~1-2%
Global Soft Power Rank	2nd (overtook the UK just this year)	3rd
Military Global Rank	3rd	6th
Active Military Personnel	2.35 million	194,000
Industrial Output (% GDP)	40.7%	17.5%
Exports (2025 Q1 growth)	6.9% (leading exporter)	Lower; has trade deficit
UN Security Council Seat	Yes	Yes

China is projected to overtake the US as the world’s largest economy by 2031, while the UK is expected to drop in global rankings.

China is a major investor in developing countries and a key player in global supply chains. Samsung and MediaTek are examples of that.

If push came to shove and those SEP disputes turned into fights over who can win the more painful sanctions, companies like Samsung and MediaTek couldn’t expect much help from the UK, but they might face serious consequences in China, depending on what they do to take advantage of captive UK courts.

Again, as long as those interim license declarations are just useless (with some celebrating them as reasonable and others considering them idiotic), there is no real fight. The actual influence of those declarations will be minimal. Franky, the UK’s SEP jurisprudence seriously threatens to reach a point where foreign courts should consider a verdict by random jurors from some rural area in the U.S. no less persuasive than an EWHC or EWCA opinion.