Context:
- Last week, the Landgericht München I (Munich I Regional Court) granted ZTE an anti-ETSI-complaint injunction (AECI) against Samsung, and it became discoverable that the England & Wales Court of Appeal (EWCA) had not only granted but also expedited ZTE’s appeal of an interim-license declaration (October 15, 2025 ip fray article). Samsung withdrew its ETSI complaint, and the UK appellate hearing was scheduled for October 28, 2025 (October 16, 2025 ip fray news piece).
- In the summer, the Munich part of that global dispute gave rise to an updated and expanded FRAND (fair, reasonable and non-discriminatory licensing) guidance by the 7th Civil Chamber under Presiding Judge Dr. Oliver Schoen (“Schön” in German) (July 10, 2025 ip fray article). FRAND was discussed at a first hearing, with infringement trials scheduled for the fall.
What’s new: Today the Munich I Regional Court was scheduled to conduct a ZTE v. Samsung standard-essential patent (SEP) trial in case no. 7 O 64/25. However, on rather short notice the court thankfully informed ip fray of the trial date having been vacated by Presiding Judge Dr. Schoen. We informed of that development through a LinkedIn post yesterday afternoon.
Direct impact: Our operating assumption is that the parties are finalizing a settlement. The timing strongly suggests so. Samsung faced the risk of a German injunction coming down shortly after today’s trial, potentially even from the bench (which would not have been unprecedented in that court). The upcoming UK appellate hearing (all we can see from the outside is that some filing was made yesterday) also represented a significant risk for Samsung, while ZTE only stood something to gain and nothing to lose there. Samsung’s compliance with the AECI took all the pressure off of the European Telecommunications Standards Institute (ETSI) to decide on the further course of action.
Wider ramifications: The dispute had the potential to lead to further interesting decisions and judicial clarifications, but for the parties it presumably made a lot of sense to put this behind them and move on. ZTE has a growing licensing business, and Samsung needs to focus on its product business. The Munich I Regional Court’s role in this presumptive settlement, both on the infringement side and with the novel AECI, can hardly be overstated. One lasting effect of this apparently terminated dispute is that implementers will try to use ETSI for their purposes unless ETSI has the guts not to allow itself to be used. Then there are AECIs as a potential remedy.
Until there is official confirmation of a settlement, we can’t be 100% sure that there was some other reason for the short-notice cancelation. One of the three judges on the panel or counsel for one of the parties could have called in sick. People can always contract an illness, and the Central European fall is a season where that happens particularly frequently. In the Munich area, there are notoriously many viral infections in the weeks after Oktoberfest (which is actually more of a Septemberfest). However, there are overwhelmingly strong reasons to believe in a settlement:
- Neither the court nor anyone else we reached out to stated a reason.
- For the reasons stated in the box above, this is a very logical settlement point.
- So there are two possible explanations and the likelihood for one (settlement) is elevated to a far greater extent than for the other (post-Oktoberfest viral infections in Munich), and if one looks at those circumstances in combination with the short-notice settlement (why would someone call in sick just on the eve of such an important trial?) and everyone’s silence on the reasons for the cancelation, it becomes a safe assumption. Not safe enough to bet the farm on it, but safe enough for third parties to consider this chapter almost certainly closed.
Samsung defended itself tooth and nail on the FRAND front, with cases in multiple jurisdictions, none of which apart from the one in the UK had traction. The idea of using ETSI to put pressure on a SEP holder in the wake of a UK interim-license declaration has set a precedent (even a dangerous one if not for the Munich I Regional Court’s decisive intervention) and more such complaints may follow regardless of the possibility of AECIs. For the health of the standards ecosystem, that is not a good thing. As we said in a LinkedIn post yesterday (only hours before the cancelation of the trial), putting a FRAND dispute, especially one involving different takes by certain jurisdictions, before a General Assembly with an arbitrary allocation of votes and lobbying organizations among its members amounts to “mob rule” regardless of how respectable the organization and its members are.
Let’s get real. If there is a disagreement between, say, UK and German judges over whether the unlicensed use of SEPs should be stopped, the solution is not to have a vote. It’s not democracy. It’s not the rule of law. It’s mobocracy.
ETSI made a fundamental mistake by entertaining a complaint at a point where the decision underlying it was still under appeal and decisions in other jurisdictions were outstanding. The only appropriate action would have been to give it short shrift. There will always be the risk of someone suing ETSI over an alleged dereliction of duty. They must live with that, and only make things worse by getting involved with disputes they can’t resolve.
Another concern is that ETSI is becoming exceedingly inclusive. Most of its 900 members never contribute any technology to a standard, yet they all have votes. It is a uniquely European mistake to put such governance structures in place. The European Central Bank is the only financial system in the world where the debtors, not the creditors, decide on the amounts of the loans they receive and the terms. Such structures put the fox in charge of the hen house, and incentivize irresponsible behavior.
What ETSI should really be concerned about at its upcoming General Assembly is not whether ZTE grants Samsung a license (apparently they have already agreed on that), but whether astroturfers (organizations claiming to represent someone else than they do represent, and in a worst-case scenario even their backers’ victims) may get to participate in hypothetical future votes on what is FRAND (June 20, 2025 ip fray article).