Context: Samsung is seeking FRAND (fair, reasonable and non-discriminatory licensing) determinations of different but overlapping sorts in (at minimum) four jurisdictions (UK, Germany, U.S. and Unified Patent Court (UPC)). That parallel pursuit of FRAND claims is unprecedented (June 20, 2025 ip fray article) and a federal judge in San Francisco is not excited (June 18, 2025 ip fray article). Earlier this month, the High Court of Justice for England & Wales (EWHC) held a two-day hearing on Samsung’s request for a declaration of its entitlement to an interim license from ZTE  (June 4, 2025 ip fray article). After the hearing we considered it rather likely that Samsung would obtain that declaration, though this case is different because ZTE is actually prepared to grant Samsung an interim license to its standard-essential patents (SEPs), subject to Samsung accepting a final FRAND determination by a Chinese court (June 6, 2025 ip fray article).
What’s new: Mr Justice [James] Mellor has just handed down his decision on Samsung’s interim license push, and granted the declaration sought. His reasoning is outrageously unbalanced, with an “anything goes” approach to UK law and the attitude that anything not decided in the UK can only be intended to disadvantage Samsung.
Direct impact: This is purely declaratory and not binding on ZTE, much less on any foreign court. After Lenovo obtained a similar decision against Ericsson, the latter declined to grant an interim license and appealed (March 7, 2025 ip fray article). Due to a settlement, no further decision was made. Samsung nevertheless hopes to gain leverage beyond a mere declaration, such as at the stage where it might prevail on one of its own infringement claims and then seek a UK injunction against ZTE.
Wider ramifications: At minimum, two other implementer-brought FRAND actions are pending in the EWHC: Acer v. Nokia (LinkedIn post by ip fray) and Hisense v. Nokia. Yesterday, Nokia’s chief litigation counsel Dr. Clemens Heusch said on the “FRAND or foe” panel of the 2nd Annual IP Dealmakers Forum Europe in London that implementers bringing UK cases know the final royalty determination could be high, such as in Optis v. Apple (May 1, 2025 ip fray article), but apparently prioritize the potentially delayed resolution of a case (LinkedIn post by ip fray). He said an interim license is intended to serve as an antisuit injunction.
The first three paragraphs already reflect how unusually agenda-driven and tendentious the decision is:
- Para. 1 talks about the UK and Chinese proceedings, but does not mention that Samsung is actually seeking FRAND-related relief, partly on antitrust and partly on contract law grounds, in multiple places.
- Para. 2 says the only material difference between the two parties’ offers is that ZTE requires Samsung to accept Chinese FRAND jurisdiction, but fails to mention that Samsung wants to force ZTE to submit to UK FRAND jurisdiction. That fact is stated in para. 10.
- Para. 3 quotes Lord Justice (LJ) {Richard] Arnold of the England & Wales Court of Appeal (EWCA) with a total non sequitur: “In the absence of a global dispute mechanism for determining FRAND disputes, or an ad hoc agreement to arbitration, the possibility of jurisdictional conflict is inescapable.” But there is nothing inescapable there: each jurisdiction could content itself with setting FRAND terms only for the patents it’s actually responsible for. What makes that sentence completely nonsensical is that there is no global dispute resolution mechanism in any field of law. By the same “logic” one could always find that the UK courts must become the world’s exclusive arbiter in the absence of a World Court. EWCA precedent is binding on the EWHC, but that does not mean that the EWHC has to adopt fallacies that are just remarks and not legal holdings.
Both Samsung and ZTE hold thousands of cellular SEPs. Without a doubt, the outcome will be a cross-license, but it is also beyond doubt that Samsung, with far greater exposure, will be the net licensee and ZTE will receive money. Samsung is not only seeking a FRAND determination in the UK but also asserting several of its own patents. Apparently Samsung hopes to obtain a UK injunction against ZTE as a means of forcing ZTE to accept the terms determined by the UK judiciary.
Throughout the ruling, it is striking that Mr Justice Mellor pretends to take a 360° view, but he clearly has a 180° agenda. Case in point, while Samsung is seeking leverage from one or more UK injunctions, he blames ZTE for enforcing its patents in other jurisdictions that are not under British occupation (or at least haven’t been in a long time): “ZTE were holding out an olive branch in one hand but with a sword in the other.” By the olive branch he means ZTE’s offer to grant Samsung an interim license, and by the sword he means ZTE’s infringement lawsuits in some other countries. So, if you do it in the UK, that’s par for the course. You do it elsewhere and you’re an unwilling licensor.
The decision is a textbook example, if not the epitome, of dual standards. UK judicial imperialism in the SEP context has reached a point at which other jurisdictions should strike back forcefully as soon as anyone tries to get actual leverage based on what, for now, is only a declaration.
In para 106, the decision quotes ZTE’s counsel on what motivations other than extracting supra-FRAND royalties ZTE has for insisting on Samsung’s acceptance of the Chinese FRAND determination:
“Parties want to litigate where they do business because they are familiar with the legal system, because they are familiar with court procedures, because the language of the litigation is familiar to them, because of the location of documents or witnesses, because of the desire not to lose management time through travel, because of relative legal costs in China compared to England.”
All of those are legitimate reasons, and Mr Justice Mellor elected to sidestep those strong arguments based on the procedural stage at which they were raised.
Anyone looking at the Samsung-ZTE situation without any agenda or bias would take into consideration that Samsung itself said, in its dispute with Ericsson four years ago, that China was the best jurisdiction for a FRAND determination. And there are stronger reasons favoring China in this case than there were then.
There is no shortage of illogicalities in the order, and one of the worst ones is found at the end of para. 124:
“Furthermore, just because ZTE can point to individual actions which may point to good faith (such as the revisions to their Interim Licence offers) does not detract from my overall assessment of their conduct.”
By that the judge means that ZTE’s pursuit of injunctions in various jurisdictions (which, by the way, Samsung is doing for the same purpose of forcing ZTE to submit to a particular jurisdiction) is bad faith regardless of the interim-license offer that is on the table. That, however, makes no sense. Samsung could accept the interim license as offered by ZTE and that would immediately remove any threat of SEP injunctions. If, however, it is bad faith to seek patent injunctions in order to get the other side to submit to a certain jurisdiction for the purpose of a FRAND determination, then ZTE is doing the same thing.
This article would become way too long if it pointed out each and every asymmetry in the lopsided, biased and utterly unfair decision. Two more striking examples are worth looking at. First, from para. 127:
“The wave of injunctive proceedings commenced by ZTE were completely unnecessary since Samsung were and are actively seeking fresh global FRAND cross-licence terms, to replace the previous global cross-licensing terms which the parties abided by for several years. There is no suggestion that Samsung were operating other than as a willing licensee (and as a willing licensor).”
This, too, would actually cut both ways. ZTE is not seeking anything other than a renewal of the cross-license. It is absurd that ZTE is being described as an unwilling licensor engaging in hold-up when the only difference is that ZTE considers China the appropriate jurisdiction to resolve the dispute cost-efficiently.
Another example of how the decision is self-contradictory beyond belief is found in para. 159:
“I also bear in mind this factor. If ZTE were right in their opposition to this application and the position they have adopted, it would add a powerful weapon to the SEP licensor’s armoury, in this sense. Any action for FRAND terms commenced by an implementer or net payer under a cross-licence, could be derailed in short order by the SEP licensor offering an interim licence on condition that the other party must accept the SEP licensor’s choice of forum, the offer being backed with injunctive relief in other jurisdictions, most likely targeted to cause the maximum damage to the SEP licensee’s business. I do not think the Court should encourage, assist or contemplate such naked forum shopping.” (emphasis added)
The last sentence is the opposite of the truth. What the EWHC is doing here is just what it claims it is not doing: it’s encouraging forum-shopping by net licensees like Samsung. That is, in turn, called forum-selling.
The judgment does not end without a final cheap shot at the European Telecommunications Standards Institute (ETSI):
“It is a further reminder that ETSI and other Standard Setting Organisations need to focus attention on incorporating some dispute resolution procedure(s) into their terms.”
Just like LJ Arnold, it appears that Mr Justice Mellor does not know how decisions are made at ETSI. It is impossible to reach a consensus there on global dispute resolution procedures. This is nothing but an imperialist judiciary’s attempt to attribute its outrageous decisions to someone else’s alleged (and, in fact, imaginary) failure.
UK SEP case law has hit a new low.