Articles relating to video streaming patent disputes are available free of charge (as are articles about patent pools, regardless of the field of technology).
Context:
- Earlier this year, Nokia started enforcing multimedia standard-essential patents (SEPs) against device makers Acer, ASUS and Hisense in the Unified Patent Court (UPC) (April 1, 2025 ip fray article), Germany, the United States (April 11, 2025 ip fray article), Brazil and India (June 13, 2025 ip fray article). The three companies brought UK FRAND (fair, reasonable and non-discriminatory licensing) complaints against Nokia ((June 12, 2025 LinkedIn post by ip fray).
- The most recent developments include a declaratory-judgment complaint by Nokia against Acer in the U.S. (September 6, 2025 ip fray article; Acer disagrees sharply with our reporting, but has not provided numbers, so we stand by the view that their exposure is hugely greater than Nokia’s) and a Xiaomi FRAND action in the UK that puts ASUS in a predicament because they can’t simultaneously seek an interim license from Nokia while denying one to Xiaomi (September 9, 2025 ip fray article).
What’s new: We’ve found out about an appeal, along with a request for an emergency stay, that Nokia has lodged with the England & Wales Court of Appeal (EWCA) against a very recent order by Mr Justice Mellor of the High Court of Justice for England & Wales (EWHC) obligating Nokia to provide, by the end of this month, third-party SEP license agreements to the lawyers representing Acer, ASUS and Hisense. Nokia’s appeal alleges serious procedural issues, among them that the court would first have to resolve Nokia’s jurisdictional challenge (scheduled to be heard in October) and a confidentiality club would have to be put in place. Nokia declined to comment, but we believe the information we have is reliable enough to warrant this report.
Direct impact: Nokia’s application recognizes that there is little time for the appeals court to decide on whether to grant an emergency stay pending the resolution of Nokia’s request for a stay pending the entire appellate proceedings, but argues that this was necessitated by the course of events that was beyond its control. If the EWCA agreed with only one of the issues raised by Nokia, it would have to overrule Mr Justice Mellor.
Wider ramifications: Should even just one of Nokia’s arguments be deemed meritorious, the appellate judges might be profoundly concerned about what’s going on below and how it reflects on the UK and its judiciary. It is in the eye of the beholder whether Mr Justice Mellor was merely being pragmatic (which must be the way he views it) and basically looking at this as no big deal because the related agreements had already been disclosed in a parallel United States International Trade Commission (USITC or ITC) proceeding, or whether he disregarded several of the most fundamental procedural rules. If he has tacitly already prejudged the jurisdictional challenge, that would make his decision on disclosures very pragmatic, but raise another issue.
I don’t see a deliberately reckless approach to the rules, but the end of pragmatism doesn’t justify all means. The part I personally find troubling is that this is not just about the parties to the case, but about third parties whose confidential business information must be safeguarded even if disclosures have already occurred elsewhere.
Florian Mueller
Mr Justice Mellor’s August 21, 2025 order addressed several procedural questions, and the part that Nokia is now challenging relates to disclosures. It came down at the end of a hearing that was a follow-up to a July 30, 2025 hearing over which Mr Justice Meade presided (July 30, 2025 LinkedIn post by ip fray), and which Hisense did not attend because of one technical difference between Hisense’s smart TVs and Acer’s and ASUS’s computers: those TVs only play video, but they don’t record, so Hisense can only infringe decoding, but not encoding patent claims. The decoding/encoding difference is key because even if one can argue that a patent claim is inevitably infringed when encoding video in such a format as High Efficience Video Coding (HEVC or H.265), the standard defines only decoding, so that’s what the FRAND pledges technically cover. One of the issues in the case is whether there is nevertheless UK FRAND jurisdiction even over encoding patent claims, which is what Acer and ASUS want.
The more fundamental juridictional issue in this set of disputes is the same for all three implementers: whether they can seek not only an interim-license declaration in the UK (which is what others have recently obtained in several cases), but also demand specific performance, which would mean a compulsory license. Actions, not only words. The Munich I Regional Court’s 7th Civil Chamber has made it unequivocally clear that this attempt to deprive German courts of jurisdiction would be met with a strong response (July 18, 2025 ip fray article), and the Unified Patent Court (UPC) has so far not been less willing than German courts to order injunctions.
One fact that Nokia mentions in its application is that ASUS sued Nokia customers AT&T, T-Mobile and Verizon in the United States District Court for the Eastern District of Texas in 2023 (case numbers: 2:23-cv-00486, 2:23-cv-00487 and 2:23-cv-00488), alleging SEP infringement by Nokia’s network infrastructure products. But in the UK, ASUS positions itself as an implementer facing injunction requests while engaging in precisely that kind of enforcement against Xiaomi as mentioned further above.
Nokia’s criticism of procedural issues begins even before the August 21, 2025 hearing. Two days prior to that one, the parties had to file their skeleton argument. By local Finnish time, it was only in the (late) afternoon of the previous day (two hours ahead of the UK) that Nokia received unsealed versions of Acer’s and ASUS’s application. Nevertheless, they say, they filed their skeleton argument on time while Acer and ASUS allegedly didn’t: they waited, and then filed another document with the court.
The primary issue at the August 21, 2025 hearing (a case management conference) was the encoding/decoding dichotomy, and a hearing on that question was scheduled for the week of October 20. Only the latest 20 minutes of the August 21, 2025 hearing were dedicated to Acer’s and ASUS’s early disclosure applications (including the time to give judgment right at the hearing). And the upshot on the disclosure side was that Nokia was ordered to disclose third-party SEP license agreements in the UK by September 30, 2025.
What Nokia appears to be saying between the lines is that they weren’t treated fairly, but that is only one of several points. The following legal issues are raised:
- No disclosures should happen prior to resolving Nokia’s jurisdictional challenge. If the outcome is that there is no jurisdiction, then it’s prejudicial to Nokia to have disclosed those agreements.
- Procedural unfairness, with the sequence of events being even more troubling in light of the summer vacation season, where UK courts hear cases only if there is objective urgency. And here, despite the vacation season, not even the regular three-day period between an application and a hearing was respected.
- Even in the absence of a written application, Hisense was granted the same disclosures. That is an example of Mr Justice Mellor apparently prioritizing efficiency over regular procedural paths.
Nokia argues that disclosures in a USITC proceeding do not mean that there is no harm to Nokia from making the same documents available in the UK, where it will never have an obligation if its jurisdictional challenge succeeds.
Here, the disclosures would have to be made (unless the EWCA intervenes now) weeks before the jurisdictional hearing that might obviate the need altogether. There are apparently different schools of thought in the UK (apart from Mr Justice Mellor’s, which is novel and unique) as to how a court should handle disclosures when there is a jurisdictional challenge on the table. The SEP license agreements are irrelevant to the question of jurisdiction. Mr Justice Mellor’s approach was apparently that one might as well handle the disclosures now. But the FRAND hearing won’t take place before mid-2026.
With all due respect and in all fairness, the way the disclosures were ordered does raise the question of whether Mr Justice Mellor considered Nokia’s jurisdictional challenge a long-shot motion, if not worse. But Nokia argues that this case is different from all the others where the UK judiciary held that it had jurisdiction: it’s not just about an interim-license declaration, but about specific performance.
Based on the state of the UK proceedings, it appears that the Munich I Regional Court would be prepared any day of the week to strike down on the pursuit of forcible interim licenses. But for now, there still is the possibility of Nokia prevailing on its jursidictional challenge in the UK. If that jurisdictional challenge failed, there would still be time for an anti-interference injunction along the lines of Munich’s signature anti-antisuit injunctions.
Counsel
Nokia’s appeal was brought by Douglas Campbell KC, who is (separately from representing clients) a Deputy High Court Judge and has been instructed by Bird & Bird.
ASUS and Acer are represented against Nokia in the EWHC by Morgan, Lewis & Bockius UK LLP, who have instructed James Segan KC, Henry Ward and Ravi Mehta. Hisense also works with Mr. Ward, but is being advised by Kirkland & Ellis International LLP, which also brought Xiaomi’s FRAND action we reported on yesterday. That means there is potential for friction within the joint defense group, unless ASUS simply grants Xiaomi an interim license and/or settles with Nokia.