Context: With decisions such as the recent interim-license declaration in Samsung v. ZTE (June 25, 2025 ip fray article; follow-up: June 27, 2025 ip fray article), UK FRAND (fair, reasonable and non-discriminatory licensing) case law has reached the point where any jurisdiction other than the UK is by definition inferior and untrustworthy. Contorted rationales are presented to argue that two parties with symmetrical behavior are not doing the same thing because one prefers UK over foreign proceedings, which makes that one stand, by definition, on higher ground. Presently, the High Court of Justice for England & Wales (EWHC) is particularly disrespectful of its Chinese counterparts. There is another FRAND case that was brought in the UK by a party to a case where the obvious center of gravity would be China: MediaTek v. Huawei (April 15, 2025 ip fray article). A jurisdictional challenge by Huawei to MediaTek’s claims was dismissed earlier this year (March 18, 2025 EWHC judgment).
What’s new: The EWHC has now published a judgment dated July 4, 2025 siding once again with MediaTek against Huawei. What Huawei sought to achieve was a stay of the UK action, and the reasons it gave for a renewed motion to stay were a mix of legal developments and new offers for dispute resolution that Huawei had made to MediaTek. While Mr Justice Leech acknowledged that at least some of those offers constitute new circumstances, he faulted Huawei for not having made them earlier and denied the request for a stay as well as the one for leave to appeal.
Direct impact: For now, the UK FRAND action will go forwared, with a trial to be held in early 2026. But it remains to be seen whether developments in China and/or other jurisdictions will result in either a settlement or in a decision by MediaTek to withdraw its UK case, which is nothing but an attempt to capitalize on judicial imperialism.
Wider ramifications: Huawei’s counsel, which now includes lawyers from the Bird & Bird firm, has come up with what could be creative solutions to the UK FRAND mess. The most interesting offer Huawei made to MediaTek is one that could work for other parties with zero desire to deal with UK FRAND litigation brought by implementers and with not much of an interest in the UK market either: Huawei offered to waive any FRAND defense to MediaTek’s UK standard-essential patent (SEP) assertions as well as its right to enforce any of its own UK SEPs, all of that subject to the EWHC staying the proceedings, which it has now declined to do.
This follow-up to the March decision was primarily a missed opportunity for the EWHC to show some more deference to China. Just like China is the appropriate jurisdiction for the FRAND dispute between ZTE (a Chinese company) and Samsung (a South Korean company that argued only four years ago in its dispute with Ericsson that China was the best FRAND forum), no jurisdiction comes even remotely close to China in terms of where any rate-setting between Huawei (a Chinese company) and MediaTek (whose manufacturing operations and top ten customers are based in China) should be performed.
Mr Justice Leech ran out of arguments and then resorted to just blaming Huawei for engaging in bargaining with the court (through what one might call iterative offers designed to address concern after concern). The finality of decisions is important, but courts should also avoid holding time-consuming trials over non-issues. If changed circumstances eliminate the basis for a dispute, there should be no trial. But not so when a jurisdiction seeks to attract SEP litigation despite the limited size of its market and the fact that it doesn’t make smartphones or similar devices.
When the original decision came down in March, Huawei was pursuing a FRAND case in China that was limited to Chinese patents. MediaTek, however, sought a global FRAND determination in the UK. Just because Huawei’s Chinese claim was territorially limited still didn’t mean that the UK was the right place for a worldwide FRAND rate-setting exercise. But there was a way of distinguishing, based on scope, what the two parties were seeking.
After that decision, Huawei showed greater flexibility. For example, Huawei was ready to widen the scope of the Chinese FRAND action, provided that MediaTek would agree to it and withdraw its UK case. MediaTek, however, prioritizes its UK action. The most likely explanation is that MediaTek primarily seeks to derail proceedings in other fora. As Nokia’s chief litigation counsel Dr. Clemens Heusch explained at a recent London conference (without reference to any single case), implementers who want their FRAND disputes resolved in the UK are apparently more interested in delaying resolution than they are concerned about the risk of the ultimately determined royalty rate potentially being rather high (June 24, 2025 LinkedIn post by ip fray).
Para. 10 of Mr Justice Leech’s judgment, which concludes the part on the potentially different scope of the Chinese proceedings, is telling:
“In my judgment, therefore, there has been no material change of circumstances. There have obviously been developments in the Shenzhen Claim since I heard the Applications in December 2024. But that does not mean that the Defendants are entitled to a stay of proceedings. If it did, the Defendants would be back before this Court every time a hearing took place in China trying to re-argue the question whether it was appropriate to grant a stay.”
There would be no such risk of having to evaluate a new situation in China if the English courts contented themselves with making FRAND decisions that relate only to the UK. It’s their own judicial overreach that creates this mess. And holding a short hearing on some new circumstances is yet a minor effort compared to a full-blown multi-week FRAND trial with all that goes with it.
There’s a big elephant in the room that the English courts don’t want to talk about: whether another jurisdiction (in this case, like in the ZTE-Samsung dispute, China) is simply the more appropriate forum. While Huawei and ZTE have good reasons for not wanting to litigate FRAND in London, Samsung (given the positions it took against Ericsson) and MediaTek (with its top ten customers and its manufacturing operation between in China) have no good reason to complain about a Chinese venue.
Huawei also made offers and (conditional) undertakings:
Huawei offered to “enter into a global cross-licence on the terms determined by the Shenzhen court (i.e., on the rates determined by the Shenzhen court for each party’s respective global 4G/5G portfolios).” Alternatively, Huawei also offered to MediaTek that the parties could jointly petition the Chinese court (in Shenzhen) to determine the terms of a global cross-license, and Huawei would be prepared to enter into that one.
Subsequently, Huawei made two more offers (without withdrawing the previous ones, which remained on the table as options for MediaTek to choose). The first one of the second round of offers again related to a hypothetical global cross-license determination in Shenzhen. The next offer (i.e., the fourth in total) would have divided the global market into China and the rest of the world. MediaTek would have had to agree to “enter into a licence for products sold or manufactured in China on the terms determined by the Shenzhen court, [while] Huawei would [have] undertake[n] to offer a licence for the rest of the world on terms determined by the English Court in these proceedings.” This would have involved the dismissal of all non-FRAND cases by both parties around the globe, including MediaTek’s antitrust claims.
MediaTek rejected all of that, counting on the unwillingness of English judges to depart from their world domination doctrine according to which the UK, and only the UK, should be the global FRAND arbiter.
Another sentence from the judgment is striking:
“Furthermore, Huawei is not entitled to insist that this Court should put pressure on MediaTek to accept its offer under threat of a stay.”
Let that sink in: “. . . under threat of a stay.” How can a stay be a threat in a scenario in which the problem (setting global FRAND terms) can be reasonably solved?
It is also doubtful that Huawei wanted the EWHC to act coercively. It just wanted the EWHC to recognize that its proposal was one that a reasonable party in MediaTek’s place would accept, and if MediaTek acted unreasonably, the case might then be stayed.
Courts should not look at disputes over FRAND jurisdiction as if someone was trying to take their favorite toy away from them. They should focus on efficiency for everyone involved.
Florian Mueller
Just like Mr Justice Mellor’s bias against ZTE was thinly-veiled (if at all) in his recent decision, Mr Justice Leech does not appear to be a neutral judge here. Those judges simply love any party that wants their court to make global FRAND decisions, even if it contradicts itself, is an infringer or has questionable motives. And they hate any party that explains, no matter how strong the reasons and arguments are, why the UK does not hold a patent on global FRAND rulings.
As those four new offers were all subject to MediaTek accepting them, which MediaTek declined out of gamesmanship, Huawei also made two further undertakings. Those were for the EWHC and did not require MediaTek’s agreement in any way.
Undertaking A covered the defensive part: MediaTek is seeking a UK SEP injunction against Huawei, and Huawei waived a FRAND defense in that scenario, explicitly accepting that it would then be hit with a UK patent injunction should MediaTek prevail on a valid SEP.
Undertaking B waived Huawei’s right to enforce any of its own UK SEPs (related to 4G/5G) against MediaTek.
Both undertakings were, as Huawei clarified, not a license for MediaTek to its UK patents (but a covenant not to sue as it would be called in the U.S.), and no waiver with respect to claims Huawei might have against upstream acts carried out outside the UK. Also, Huawei reserved any rights against third parties. And the undertakings to the court were made for the purpose of securing a stay. The court declined to stay, so the undertakings are not binding on Huawei now.
While Huawei got nothing out of this latest decision (the judge also didn’t allow an appeal), its counsel at least obtained the clarification that he didn’t mislead the court in the course of these proceedings (para. 32 of the decision).
The negative decision is largely just based on the fact that Huawei did not make those offers and undertakings earlier. This means that similarly-situated parties might try this approach, particularly the one of waiving a UK FRAND defense and the right to enforce UK SEPs, when trying to avoid global FRAND determinations in the UK.
Based on those undertakings, there is no actual FRAND controversy between those two parties that a UK court should deal with, but such concepts as “useful purpose” no longer seem to mean anything in London when it comes to SEPs. That’s why the solution may have to come from other countries. Sooner or later, an implementer will try to enforce a UK interim license declaration, and if that triggers anti-antisuit injunctions and/or sanctions in other jurisdictions, the party will be over, just like the Munich I Regional Court and the Unified Patent Court’s (UPC) Munich Local Division have made the pursuit of U.S. antisuit injunctions against German and UPC SEP infringement lawsuits an unprofitable endeavor.