Context: The ink is barely dry on the first Unified Patent Court (UPC) standard-essential patent (SEP) case against Chinese automaker BYD (May 27, 2025 ip fray article). Also, there are five cases are pending in German courts.
What’s new: Sol IP has filed a second UPC case against BYD, again in The Hague. The case no. is 25834/2025, and the patent-in-suit is EP2525515 (“Carrier aggregation in wireless communication system”), a 4G SEP. Also, rumors have surfaced about a third SEP holder (besides Sol IP and Japan’s IP Bridge) suing BYD in Europe.
Direct impact: BYD is now facing at least eight lawsuits from at least three different SEP holders (Sol IP, IP Bridge and an unnamed third) in at least three different courts (UPC The Hague, Munich I Regional Court and Mannheim Regional Court). The likelihood of BYD being able to fend off all of those SEP assertions is extremely low.
Wider ramifications: A third party that must be watching those patent assertions against BYD with heightened interest is Tesla. Most automotive industry players have opted for a one-stop shop solution by taking an Avanci 4G license or have already upgrade dto Avanci 5G if they actually make 5G cars. Only Tesla and BYD are presently embroiled in litigation either with Avanci (Tesla) or individual SEP holders (BYD). Only Tesla and BYD are neither taking bilateral licenses (Tesla is known to have only one such license in place) nor the Avanci pool license. BYD has taken and continues to take market share away in Europe from Tesla and others, but a European (or even just German) sales ban could reverse that trend.
Reuters reported on May 27, 2025 that Tesla’s European sales had basically been cut in half despite overall demand for electric vehicles growing by almost 30%. To shrink in a growing market is alarming. Tesla’s overall share of the European automotive market plummeted from 1.3% to 0.7%. This is primarily attributable to two reasons:
- fierce competition from Chinese automakers, especially BYD, and
- knee-jerk reactions in Europe to the Trump Administration’s policies and Tesla CEO Elon Musk’s support for President Trump as well as parties that are miscategorized as “right-wing extremist” in Europe, a continent that has a political coordinate system in which even some U.S. Democrats would be considered to hold far-right views on certain issues. Indeed, one can see Tesla cars in Europe with stickers saying “I bought this car before Elon Musk . . .”
Personally, I tend to agree with a very high percentage of Mr. Musk’s X posts on policy topics, including European politics, have publicly liked many and shared some. To me, he is a true hero of the fight for free speech, democracy, and law and order. But that is a minority view among Europeans. Mr. Musk’s political activism clearly has (and will continue to have) a negative impact on Tesla’s European sales.
Florian Mueller
Founder & Publisher of ip fray
Mr. Musk has left the Trump Administration as far as an active involvement with cost-saving measures is concerned, though he will continue to advise. The damage done to Tesla’s popularity in Europe (regardless of whether Mr. Musk was spot-on in certain ways) may be irreparable in the near term. But many European car buyers will not be driven by political considerations. That’s where competition from high-quality low-cost Chinese electric vehicles is a major factor.
In an industry that for the most part has cellular SEP peace at this stage, Tesla is pursuing a UK Supreme Court appeal after losing two rounds (March 6, 2025 ip fray article) and BYD is being sued because it is unlicensed. Those two companies are the outliers. This creates an interesting situation where they have partly aligned and partly divergent interests:
- If Tesla’s long-shot UK appeal succeeded, BYD might welcome it. And Tesla might be rooting for BYD, hoping that its hold-out will undermine automotive SEP licensing.
- But from a competitive point of view, the question is whether one will at some point throw the other under the bus. If BYD opted for brinkmanship (no pun intended with a view to the name of the judge who will preside over those two UPC cases), Tesla would benefit from a disruption of BYD’s Europan sales. But BYD, if it took a license, would be happy to see Tesla being impacted by an injunction.
Whether those companies are actually prepared to have their European (or even just German) sales disrupted is another question. Most likely neither of them will go that far. Also, this is not a Prisoner’s Dilemma situation where one doesn’t know what the other has decided to do, but the consequences will depend on what the other side does: either one can take a license anytime, and avoid the effects of an injunction. And when the first one does, the other will be isolated and judges will ask why it is the only company to refuse to take a license on terms accepted by everyone (even by one or more Chinese car makers).
Court and counsel
In the UPC’s The Hague LD, Presiding Judge Edger Brinkman and Judge Margot Kokke are always (at least so far) on the panel. A third legally qualified judge among UPC judges who are not Dutch. And depending on the complexity of a patent, a technically qualified judge may be appointed as well.
Sol IP is represented by Fieldfisher Germany attorneys-at-law Benjamin Grzimek and Dr. Joern Peters (“Jörn” in German) as well as Eisenfuehr Speiser patent attorneys Dr. Ludger Eckey, Dr. (PhD) Karin Rosahl and Stefan Wiethoff.
In Sol IP’s (but not IP Bridge’s) German cases, BYD is represented by a Hogan Lovells team led by Dr. Henrik Lehment. He would be a natural choice for the UPC as well, given that he has very significant UPC expertise and argues very persuasively in English (a skill that we also noted when talking about another leading German patent litigator last year: October 30, 2024 ip fray article). There is no question that English will be the language of proceedings in these cases.