Context: UK case law on standard-essential patents (SEPs) has recently gone off the deep end (July 7, 2025 ip fray article). Some judges of the England & Wales Court of Appeal (EWCA) and the High Court of Justice for England & Wales (EWHC) have radicalized themselves, trying to make the UK the world’s exclusive arbiter on FRAND (fair, reasonable and non-discriminatory licensing) rates and procedures.
What’s new: In ZTE v. Samsung, the Landgericht München I (Munich I Regional Court) issued a written FRAND guidance dated July 14, 2025 and has now produced a public redacted version that we will publish, and discuss further, in our next article. The most important item that we wanted to highlight immediately in this article is that the document announces injunctive measures against any implementer trying to exert pressure on a SEP holder to actually grant an interim license that a UK court deems it entitled to. The same apparently applies if the courts in the UK were to take such measures: the implementer would then face severe sanctions in Germany.
Direct impact: For the case at hand, it means that Samsung’s brute-force FRAND strategy (March 3, 2025 ip fray article) has already failed. ZTE is winning:
- The interim license declaration Samsung won in the UK (June 25, 2025 ip fray article), based on a double-standards rationale that no self-respecting appeals court could affirm, is going to remain a waste of time and money. Any attempt by Samsung to force ZTE to grant an actual interim license based on that declaration would backfire badly in Munich. The warning couldn’t be much clearer.
- It’s also clear that the Munich court is not going to stay its proceedings over Samsung’s Frankfurt antitrust lawsuit (February 13, 2025 ip fray article). The FRAND guidance doesn’t even dignify it with more than the succinct note that it is entirely in the Munich court’s discretion whether to order a stay. Quite apparently, the court is disinclined to do so.
- Samsung’s U.S. case against ZTE (filed in the Northern District of California) is on life support and not unlikely to be thrown out early (July 9, 2025 ip fray article).
Wider ramifications:
- For global SEP litigation:
Some parties may still seek UK interim licenses, but any implementer contemplating that litigation tactic must think hard about whether that course of action is advisable. SEP holders routinely sue in Munich, and the Munich I Regional Court would apply its well-established and demonstrably effective anti-antisuit injunction (AASI) principles to a situation in which someone tries to abuse a UK interim license declaration. The written guidance makes it clear that (in other words) as long as UK judges content themselves with just wasting everyone’s time and money on purely academic declarations, they are free to do so, but the Munich I Regional Court draws the lines where implementers use such courts to interfere with foreign proceedings. An interim license, if actually granted, has the potential to terminate foreign infringement litigation and/or the enforcement of SEP injunctions. The Munich court won’t condone that, and implementers would have to take major risks in ignoring this guidance. - For UK and other foreign rate-setting proceedings:
The guidance document voices the clear expectation that a party seeking a rate determination in a foreign country must start to make actual payments (not just deposits) based on at least the amount it proposes as a FRAND rate in the foreign jurisdiction. That would fix a flaw of the EWCA’s economically untenable, highly illogical view that interim payments are commercially equivalent to actual payments. - For the UK’s legislative initative on SEPs:
Not only the UK courts have now officially lost but the UK Intellectual Property Office (IPO) can also forget about its contemplated rate-setting initiative (July 15, 2025 ip fray article). Either that initiative will also result in something non-binding or purely voluntary — which the world doesn’t need because there already are plenty of options in the world, including but not limited to WIPO’s dispute resolution offering and soon also the Unified Patent Court’s (UPC) Patent Mediation and Arbitration Centre (PMAC) — or it will conflict with the Munich I Regional Court’s FRAND guidance. The withdrawn EU SEP Regulation would have been binding on German courts, but UK legislation is not. Therefore, the UK is never going to become the world’s FRAND forum. - For the UPC:
The UPC’s Munich and Mannheim Local Divisions (LDs) have recently dealt with U.S. antisuit injunction requests in way consistent with that of the Munich I Regional Court. Presumably the UPC, too, would thwart any attempts to abuse UK judicial imperialism to gain a tactical advantage in licensing disputes.
The FRAND guidance was already discussed in open court last week (July 10, 2025 ip fray article).
In connection with decisions in foreign jurisdictions (Section 5 of the Munich I Regional Court’s FRAND guidance), the Seventh Civil Chamber’s Presiding Judge Dr. Oliver Schoen (“Schön” in German) explains on the one hand that there’s no problem with mere declarations while making it clear on the other hand that pressure on SEP holders won’t be tolerated.
Here’s our commented summary of the relevant section (Section 5, “What influence do decisions by foreign courts have?”):
a. Fundamentals
The first sentence ironically notes that the court previously had to deal with certain decisions by UK and also Chinese courts. It uses a wording that is close to saying “we had the pleasure” (which is obviously highly ironic).
The guidance document shows respect for those foreign courts by acknowledging that those decisions were internally consistent, but goes on to contradict the EWHC on the question of divergent decisions, saying that this is a non-issue if all courts refrain from overstepping their borders. The document says Germany does respect other jurisdictions because injunctions as well as damages are limited to the country’s territory.
That is the only weak part of that entire section. It’s easily disproven. Apart from the fact that argue that German courts could actually grant extraterritorial injunctions under BSH Hausgeräte v. Electrolux (just like the UPC’s Mannheim LD did today in Fujifilm v. Kodak), what the UK courts have expressed concern about is that if a court such as in Germany orders an injunction or indicates that it will do so, the implementer may practically have to take a global license, thereby also ending all other proceedings. The difference is just that German courts don’t force a SEP holder to grant a global license. So far, UK courts don’t really force them either, and we’ll get to that in a moment.
The Munich I Regional Court states that even the requirement to post security for a global license fee (as the Munich Higher Regional Court suggested in VoiceAge EVS v. HMD) is not an issue in this question of territorial overreach as the Munich I Regional Court’s Seventh Civil Chamber pursues a different approach than its regional appeals court. (Unlike courts in common law jurisdictions, it’s not bound by the case law of its appeals court, and the written FRAND guidance predicts that the court of final appeal, the Federal Court of Justice, will overrule the regional appeals court in various ways.)
The guidance document then stresses as “indispensable” that no plaintiff can unilaterally force a defendant to enter into any obligation with respect to any territory outside that of the court seised. Therefore, it explains, foreign court rulings are not binding on the Munich proceedings in any way. There can be a derogation from that rule if the party that is defending against the foreign claim declared that it wants that foreign determination also to be binding with respect to Germany. Then there is already the first warning against using UK interim license declarations to force SEP holders to grant licenses: the court says that such a foreign declaration may not be deemed binding if the party entered into the obligation “under the impression of the specific procedural situation” (in other words, not perfectly voluntarily).
The court then practically invites anyone facing a foreign proceeding designed to interfere with German enforcement actions to avail itself of the Munich I Regional Court’s settled AASI case law.
It then clarifies what was mentioned above (under Wider ramifications): if a party starts a foreign FRAND determination action, it must already be paying to the SEP holder the license fees that it describes as FRAND in that foreign proceeding. The decision says that past precedent related only to rate determinations that had already been made in foreign countries, and clarifies that filing a rate-setting action in and of itself could already create obligations to pay royalties of at least a certain amount.
The guidance says that in practical terms there is only a limited number of jurisdictions in which SEP holders can enforce their rights. Therefore, it is key to ensure the functioning of those proceeidngs. The German system, it furthermore says, is centered around injunctive relief and rather “complicated” with respect to damages calculations. Therefore, the court will not accept that implementers try to pre-empt injunctions through actions in foreign jurisdictions.
b. The Munich court’s position on the public redacted version of the EWHC’s interim license declaration [in Samsung v. ZTE]
It is mentioned that the sealed part of the EWHC decision states a particular amount to be paid as an interim license fee. But, as the Munich court explains, that would have a “concrete effect” on the German cases as Samsung would then be licensed. The UK defendant, ZTE, does not have an obligation to grant that license (and indeed, as we reported on June 27, 2025, ZTE declines to grant that license to Samsung). The Munich court nevertheless considers it “remarkable” that the EWHC wrote that a willing licensee in ZTE’s position should submit to the UK action. It then criticizes the UK court by saying that “in the panel’s opinion, this exerts, in fact, pressure on the UK defendant [i.e., ZTE].” Viewed in isolation, this wolud mean that ZTE could already seek injunctive relief, analogous to the Munich I Regional Court’s AASI law, against Samsung because of its UK action being abusive. But as you will see further below, the Munich court is, for now, prepared to rely on other parts of the UK decision.
The Munich court then explains that “no factual reason is discernible as to why a rate-setting proceeding should be conducted in the UK in particular and [REDACTED, but it must be ZTE] should waive proven approches offered by the international patent system, such as lawsuits filed with the German courts or the UPC, in order to submit to a UK High Court decision.” The document notes that neither of the parties is domiciled in the UK, and the UK does not constitute a particularly important target market or manufacturing place for the parties. All of that is correct and exposes just how bad those UK interim license decisions are. Those are decisions that one can only make as a result of completely overestimating one’s (and one’s country’s) importance or because one will twist and bend logic and reason in pursuit of a category of cases one loves to decide. Indeed, while one need not agree with everything in the Munich court’s FRAND guidance (and we don’t), it shows that Judge Dr. Schoen is the adult in the room, diplomatically but mercilessly exposing those UK absurdities and some UK judges’ disdain for comity.
The last two paragraphs of that Section 5 then say that for now everything’s fine, but between the lines makes it clear that if parties like Samsung or the UK courts think they would get away with exerting pressure on parties like ZTE, they’ll lose. Here’s our own (thus unofficial) translation of those two key paragraphs:
Otherwise, the UK High Court [i.e., EWHC] does clarify that the decision is not meant to make an immediate impact on the competence of other jurisdictions. According to para. 160, the purpose is to avoid “trench warfare”. This Court therefore assumes that the [interim license] decision — especially in light of the express affirmative statements in its reasons — is not to be viewed as a threat to the competence of German courts.
Because the [EWHC] decision explicitly emphasizes the independence of other countries’ courts, the situation is, at least for now, not comparable with that of an antisuit injunction. However, it cannot be ruled out that certain motions by parties could pose a threat of interfering with [Germany’s] jurisdiction. In such scenarios we would have to determine whether judicial countermeasures are warranted.
The writing on the wall is crystal clear. London lost. Munich has the upper hand, and not only Munich. The UPC is even far more powerful and might do the same.
This also applies to whatever the UK IPO may have in mind with a view to a “specialist rate determination track” (SRDT). They can do what they want, distracting themselves from the problems actually facing their country by tackling a problem they overstate and are not going to solve, but their SRDT is going to be a toothless tiger. Either it will have to be voluntary, in which case there won’t be strong demand for it, or there will be pressure on parties, in which case German and other courts will create legal and economic realities that the UK can do nothing about. It appears that policy makers in the UK have not only failed to learn from the EU SEP Regulation’s failure but they’ve also forgotten to think things through. Their UK laws won’t bind the UPC, German courts, or courts in other jurisdictions in Europe and on other continents.
The rest of the world won’t submit to UK FRAND determination proceedings of any kind. The UK government is wasting taxpayers’ money on that. And some judges just made bad decisions that resulted in a colossal waste of court and party resources, but won’t move the needle. It’s over. That’s an accumulation of bad news for the UK patent judiciary on the same day (July 18, 2025 ip fray article).