Context: On Tuesday, the Court of Appeal of England and Wales (EWCA) agreed with Nokia that Acer and ASUS are not entitled to a global interim license and global RAND1 (reasonable and non-discriminatory) determination from a UK court after declining Nokia’s arbitration2 offer (May 12, 2026 ip fray article). This was the second successful appeal by a standard-essential patent (SEP) holder against a UK interim-license declaration by the High Court of Justice for England and Wales (EWHC). ZTE previously prevailed over Samsung (October 31, 2025 ip fray article).
This is a follow-up to the Tuesday coverage to elaborate on
- the direct impact on the global dispute between Nokia and the two computer makers and
- the wider ramifications for SEP enforcement, given that SEP holders presently3 have four (and if they are Chinese, potentially even five) ways to avoid a UK interim-license ruling, at least two of which presently serve to prevent a final (F)RAND determination as well.
- In some cases, SEP holders may actually find those UK determinations convenient and beneficial, such as when back-royalties owed over a long period are due.
- The discrepancy between the EWHC’s outlier lowball FRAND rate in Samsung v. ZTE and findings in multiple other jurisdictions (May 12, 2026 ip fray article) is, however, likely to dissuade SEP holders from submitting to UK jurisdiction if they can avoid it.
- Lord Justice Arnold4 has spoken out in favor of arbitration before, but the EWCA decision makes it at least plausible that the appellate panel became aware of the international backlash to UK judicial imperialism (we are talking about government agencies and courts of approximately 60% of the global economy: April 14, 2026 ip fray article). It would be desirable for the UK Supreme Court (UKSC) to look at the world outside its ivory tower, too.
Acer, ASUS “emphasize[d] and highly rel[ied] on” overruled EWHC decision in ITC investigation
In ITC investigation no. 337-TA-1448, Nokia is asserting multimedia patents against Acer and ASUS. Administrative Law Judge (ALJ) MaryJoan McNamara extended the target date to December 14, 2026, and her final initial determination (FID) is due four months earlier (August 14, 2026).
The hearing (i.e., trial) has already been held, and the positions taken by the Office of Unfair Import Investigations (OUII, commonly referred to as “the [ITC] Staff”) in a post-hearing submission suggest that Nokia is on track to a resounding5 victory both with respect to the technical merits of the asserted patents and its entitlement to a limited exclusion order (LEO, commonly called a “U.S. import ban”).
The Staff’s function is to represent the public interest (particularly the one in correct decisions). It does not decide, but its findings generally bear a lot of weight with the ALJs and, particularly, with the Commission (the political appointees at the top of the U.S. trade agency who make the final6 decision). At this procedural stage, no indicator is more meaningful than the Staff’s views.
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- This is the same as FRAND, but some standard-setting organizations use the traditional American term., not the European one known from the world of cellular standards. The word “fair” adds nothing. ↩︎
- Formally, it is an arbitration-adjustable license, meaning that payments would be made during the arbitration proceedings, with a further payment or refund being possible post-arbitration. ↩︎
- The case law remains in flux, so the number of options may still go up or down, as may the extent to which a given option serves to avoid not only an interim license but also a final (post-trial) (F)RAND determination. For example, the Unified Patent Court’s Court of Appeal will hear Amazon’s appeal against InterDigital’s anti-interference injunctions on May 28. ip fray will report. ↩︎
- ip fray never meant to disparage him. Even those who disagree with him tend to like his personality. The question is just at what point his desire to solve a problem led to decisions that were irreconcilable with the principle of comity. ↩︎
- The Staff supports Nokia’s case on each and every aspect: multiple claims from four different patents are valid, infringed, and Nokia meets the domestic industry requirement for them; and the computer makers’ non-technical defenses fail. ↩︎
- It’s final but appealable to the United States Court of Appeals for the Federal Circuit, and an import ban can theoretically be vetoed by the President of the United States, who typically delegates this authority to the United States Trade Representative (USTR). Vetoes are few and far between. ↩︎