Context:
- Two weeks ago, the Court of Appeal of England and Wales (EWCA) heard Nokia’s appeal of interim-license declarations the High Court of Justice for England and Wales (EWHC) had granted Acer and ASUS (April 23, 2026 ip fray article). The computer manufacturers were asked to explain why they insisted on an interim license while an arbitration offer is on the table.
- The fact that a Chinese court (specifically, the Chongqing Intermediate People’s Court) has made a FRAND (fair, reasonable, and non-discriminatory) rate determination substantially above that of the EWHC (May 2, 2026 ip fray article), on the same facts, reinforces many standard-essential patent (SEP) holders’ and non-UK judges’ concerns (which go back to two 2023 decisions) that the EWHC is simply in the business of selling SEP devaluation services.
- ip fray sees the UK headed toward global trade disputes (May 1, 2026 ip fray article), even more so after a recent UK Supreme Court (UKSC) hearing.
What’s new: Today, Ericsson’s Chief Patent Enforcement Officer Robert Earle (July 3, 2025 ip fray interview) explained on LinkedIn why a SEP holder’s arbitration offer to an implementer should shield from interim-license requests (May 6, 2026 LinkedIn post by Robert Earle). In advance of the article, ip fray had the opportunity to discuss with Mr. Earle the state of the global SEP litigation landscape and the need for solutions that bring about licensing agreements within a reasonable time frame and on FRAND terms. It became clear that Ericsson does not mean to force anyone into arbitration, which should remain voluntary, but views a refusal of an arbitration offer as “an indication of motives” for seeking an interim license. In our conversation, Mr. Earle also mentioned the “two hats” he is wearing as his company knows “both perspectives”: that of a SEP holder seeking to get paid, and that of an implementer seeking to get licensed.
“Court-manufactured” interim licenses are antisuit injunctions “in sheep’s clothes”
Mr. Earle recalled that interim licenses are not mandated by the European Telecommunications Standards Institute’s (ETSI) or any other standard-setting organization’s FRAND pledge. Neither are they a concept of patent law. They are “a court-manufactured right created at the request” of implementers.
He described the effect of a global interim license as that of an “ASI [antisuit injunction] in sheep’s clothes”, a means of using one forum to shut down litigation in other jurisdictions.
“It’s your right to reject and not to arbitrate, but if you reject, then don’t ask for an interim license agreement”
Ericsson routinely offers arbitration as a means of dispute resolution. Those offers come with a time limit, but they are on the table in order to avoid litigation or end it immediately after it has been brought. Mr. Earle did not mention aspecific time frame, but he noted that the arbitration option is “often available to [implementers] 14, 15 months before [litigation is brought]”. He also said many implementers don’t even respond to such offers.
Arbitration is timely as it usually delivers a result within 18 months. It is neutral. It is not tied to one specific jurisdiction. And the outcome is binding. By contrast, a UK interim license entails the issues discussed further below, and a “final” resolution in the UK has so far taken about six years (Unwired and Optis). ip fray noted that most recently all levels of the UK court system have fast-tracked SEP cases and judges are no longer taking a year after a FRAND trial to make a decision, but that makes only a gradual difference, at the expense of proper preparation.
Mr. Earle does not want to force anyone into arbitration, which is meant to be, and should remain, voluntary. His message to implementers is this: “It’s your right to reject and not to arbitrate, but if you reject, then don’t ask for an interim license agreement” long after having had the chance to avoid litigation through arbitration.
Without using this particular term, Mr. Earle described an arbitration offer as a litmus test: “Refusal is an indication of motives [for seeking an interim license].” A genuinely willing licensee should consider arbitration acceptable, and “if a court thinks a term is too biased, fix it”. But “if you pass, leave the litigation process alone”. As his LinkedIn post also makes clear, litigation is only a means to an end: the objective is to bring someone to the negotiating table and strike a deal.
“Problem-solving, not posturing” — why UK interim licenses are not fair to SEP holders
We also discussed with Mr. Earle the argument that interim licenses involve interim payments. He explained why that is not an acceptable alternative to having an actual license in a reasonable time frame:
- What actually matters is not the amount that is provided but the portion of it that constitutes bookable revenues. Anything that might have to be repaid later is not truly available to the SEP holder to fund the next round of innovations.
- The amounts of interim payments are typically midpoint figures. However, the history of judicial rate-setting shows that very few FRAND determinations ultimately led to a midpoint.
- What makes a midpoint unfair to SEP holders is that their offers are “constrained by FRAND”. SEP holders may lose their access to an injunction while implementers retain various options to avoid injunctive relief.
Mr. Earle says implementers should engage in “problem-solving, not posturing”. Interim licenses delay the outcome that SEP holders need.
Comity: global interim licenses effectively tell other courts what to do
As we have noted on various occasions, no UK judge has been able to give any reason for global interim licenses that does not amount to extraterritorial overreach. For the UK itself, such declarations are not needed under the Unwired framework.
Mr. Earle said that global interim licenses “directly impact” litigation in other countries. Even if they are nominally just declarations, there are potential consequences that SEP holders must take into consideration, and implementers want to use such licenses as a defense to infringement.
As a result, a judge in another jurisdiction — Mr. Earle mentioned Brazil, South Africa, or Indonesia as examples — must wonder: “Why is another country telling me how I should proceed?”
There was no time to discuss with Mr. Earle how other courts and executive governments should respond. The focus at this point is on a safe harbor for SEP holders (which would symmetrically apply to SEP holders seeking royalties from Ericsson and its customers) based on an arbitration offer.