In April, Ericsson and Lenovo entered into a global patent cross-license agreement, settling all pending litigation worldwide (April 3, 2025 ip fray article). The case, which first started in the latter half of 2023, saw suits filed in the U.S., UK, EU, Brazil, Colombia, and more, and had significant consequences for standard-essential patent licensing. In the UK, for example, the case was meant to go all the way to the Supreme Court to address the question of UK interim licenses. That issue has since been addressed in a separate case between Samsung and ZTE (June 27, 2025 ip fray article). Some terms are currently being ironed out through binding arbitration.
Robert Earle, Ericsson’s Vice President, Patent Assertion and Enforcement since November 2014, sat down with ip fray to discuss an array of key topics, including when arbitration is or isn’t a good idea, the efficiency of the Unified Patent Court (UPC), and why he believes courts in one jurisdiction should not be allowed to tell those in another what to do.
Mr. Earle’s role at Ericsson focuses on strategically managing the company’s global patent enforcement activities and supporting its FRAND licensing policies and practices.
“My group is called in when the negotiations break down,” he says. “In a perfect world, I don’t ever get called.” But often, he explains, things go off track, and the companies Ericsson deals with will need to face consequences for not negotiating in good faith and appearing to hold out. He adds:
“It’s not necessarily that we want to win in 18 different countries – it’s that we want to get the negotiations back on track.”
Mr. Earle was previously at Fish & Richardson from January 2006 to October 2014, as well as an attorney at Thompson & Knight, The Earle Law Firm, and Jones Day between 1997 and 2006. Prior to that, he served as an officer in the United States Navy. He notes that he spent most of his time at Fish & Richardson on the defensive side of litigation, while his current role is more offensive, giving him a “good flavor” of both sides.
The benefits of arbitration
Mr. Earle reveals that Ericsson offers arbitration to every licensee in litigation, but almost none will take it.
But, he says, arbitration is a good path because it is “neutral”. In the current back-and-forth debate on “hold out” v. “hold up”, arbitration takes that element out for both sides. And, he adds, it’s efficient in expense and time, and has procedural advantages, too. For example, licensing negotiations are largely based on your comparable license agreements shared with other people, but businesses don’t want to have their deals broadcast because it affects their margins – arbitration allows for that.
The timeline of such an approach is also fairly predictable, he says. And from both a legal and commercial perspective, it’s much “cleaner”:
“Often, injunctions will hit in various jurisdictions, and things will move to try to get things resolved. But with arbitration, it is all off the table. It really does have a significantly less destructive commercial effect.”
Mr. Earle says his biggest tip to effective arbitration is going in with “positive and neutral intent”. And, he adds, frame the issues that need to be solved at the core.
When is it too late to arbitrate?
Often, companies will hold off on arbitrating until the litigation gets to a point where they feel too much pressure. But by then, once you have already invested between 15 months and two years in litigation, it’s too late. “It doesn’t make sense to reset the clock again,” Mr. Earle says. And, from the hold-out perspective, any delay is a positive, he emphasizes.
It’s also not recommended to arbitrate when the opposite party is forcing you to do it in a court of their choice, he says. It must be done by someone neutral and on neutral terms – if this foundation is set but one of the parties declines, then they really don’t want to solve the problem, he adds.
The UPC
Generally, the Unified Patent Court is another method that will have a positive impact on getting cases resolved quickly, Mr. Earle believes. “It moves at a fairly good pace, it’s efficient, and the amount of product you can impact with litigation can be equivalent to a U.S. type of deal,” he comments.
While in the past, you would come into one country and people would move to another country to try to get a deal done, “like playing checkers”, that issue is all gone now, he says.
What also elevates the UPC is the potential lack of jurisdictional availability in district courts, he adds. “The ITC has exclusion orders, but the district courts make it challenging to get those in the U.S.”
Interim license declarations
Late last month, the High Court of Justice for England & Wales (EWHC) issued an interim license declaration in Samsung v. ZTE (June 25, 2025 ip fray article). The topic, whic has become a key debate in the patent litigation community, was at the core of a discussion between Nokia’s chief litigation counsel Dr. Clemens Heusch and Robert Pocknell, Director of the Fair Standards Alliance, at the 2nd Annual IP Dealmakers Europe in London last week (June 26, 2025 ip fray article). While it is only a declaration, Mr. Heusch noted during the event that implementers have started to use policy and courts to “torpedo” the use of their preferred jurisdictions with interim licenses and rate settings abroad. He emphasized that Nokia “thinks it is not right” for one jurisdiction to tell another judge in another jurisdiction what to do. ZTE then told ip fray a day later that they will not be withdrawing any of their claims, indicating that no interim license making the UK the sole FRAND arbiter will be granted (June 27, 2025 ip fray article).
Mr. Earle echoed Mr. Heusch’s stance on the debate:
“It’s very difficult when any court tells another jurisdiction that they can’t adjudicate patents in another jurisdiction. If you can’t litigate a Brazilian patent in Brazil, where do you litigate it? One country can’t invalidate another country’s patent. So I think the same premise should apply there.”
He is a firm believer that an interim license agreement being used as an anti-suit injunction is not a good thing, and that people should be able to litigate the patent that has been issued by that country in that country’s jurisdiction.
“I don’t believe one country should be in a position to say: ‘We know better how to apply those rules to country X’s patents than that country itself.’”