UK appeals court to hear Lenovo’s demand for forcible interim license from Ericsson starting on Tuesday: will imperialism or sanity prevail?

Context: The vaunted UK patent judiciary is on a treacherous path. Lord Justice Richard Arnold, who for decades and beyond his country was regarded as a voice of reason, authored two decisions in connection with implementers’ requests for forcible interim licenses that raise concerns. Given that the case law in that area isn’t really settled yet, it wasn’t totally surprising that he granted Lenovo the right to appeal the denial of an interim license from Ericsson (January 26, 2025 ip fray article). But he also treated that Hail Mary appeal as a priority matter and expedited it. He scheduled the hearing to start this Tuesday (February 18, 2025). The following week, he (and two judges who voted with him) shockingly allowed Amazon to pursue an interim license potentially even over non-standard-essential patents (non-SEPs) (February 2, 2025 ip fray article). Other jurisdictions are not going to tolerate such unfettered judicial imperialism, and there are ways of discouraging implementers from using the English courts to undermine SEP litigation around the globe (February 4, 2025 ip fray article).

The England & Wales Court of Appeal (EWCA) is standing at a crossroads with respect to its SEP case law.

LJ Arnold voices not only in decisions and at hearings, but also at various webinars and conferences, his criticism of there being no one-stop global judiciary for SEPs. His above-mentioned decisions reflect a misbelief that this state of affairs makes the UK the world’s arbiter for SEP disputes, and gives it the right to put itself above other jurisdictions without regard to how the rest of the world may respond.

Give me a break.

There is no global judiciary for anything in the world. Case in point, the President of the United States has recently imposed sanctions on the International Criminal Court (ICC) for its transgressions (February 6, 2025 White House announcement).

There are, of course, plenty of options available to those who look for global dispute resolution on a voluntary basis (November 4, 2024 ip fray podcast). But that does not mean that one can put global dispute resolution in place against one party’s will.

The only sensible solution would not be the pipe dream of creating something for SEPs that the world has never been able to create in any field or subfield of law, but for all of the world’s jurisdictions to leave foreign SEPs alone. It leads nowhere to focus on only one form of extraterritorial overreach. Whether one forces an implementer to take a global license at the threat of an injunction or a patentee to grant a license (interim or long-term) at the threat of court sanctions, the net effect is the same.

Unfortunately, the UK judiciary has previously made a major contribution to the problem rather than the solution. That was Unwired Planet v. Huawei.

If Lenovo is entitled to an interim license from Ericsson, the standard is so low that just about anyone can sue in the UK and demand a FRAND license for any unlicensed cars or other products he sells, and an interim license in a first step.

The minimum standard of reasonableness for a court is to engage in some basic line-drawing. The question to ask is: if this plaintiff gets it, will everyone get it? And if the answer is yes, then there’s something wrong with what the plaintiff wants.

The questions that that the judges will ask on Tuesday and probably also Wednesday may or may not provide an indication as to where this is headed. At the Xiaomi-Panasonic hearing, it was clear that none of the three judges was sympathetic to Panasonic having walked back on its commitment to global dispute resolution in the UK. It was clear that there were either going to grant an interim license (as a 2-1 majority did) or recommend an antisuit injunction. This time around, there is no such circumstance. The only reason for granting Lenovo what it wants would be judicial imperialism of the most irresponsible kind.

It would not end well. The UK can’t win this against the rest of the world. But in the short term, some litigants may be hoping for a tactical advantage. They’re within their rights do to that. But judges have to act as gatekeepers and draw the line.

The UK could actually be a very attractive jurisdiction. Some patentees have lost cases in Germany that they could have won with UK-like product-process disclosures, which are more important for non-SEP than SEP cases. Some have won injunctions (over SEPs or non-SEPs) that they couldn’t enforce during the appellate proceedings due to the collateral they were required to provide.

There must be something about SEP cases that makes otherwise extremely well-respected UK judges take extremist and imperialist positions.

If the winning argument is that there is no global SEP forum, the UK can declare itself the world’s arbiter for any type of commercial dispute.

For now, there is hope that a system with many great judges can figure out where to draw a reasonable line between the rare exception in which an interim license is warranted and the run-of-the-mill SEP dispute in which it would amount to nothing but judicial imperialism.

The SEP world is watching.
Florian Mueller
Founder & Publisher of ip fray

But if the UK judiciary thinks it can engage in judicial imperialism and get away with it, it will find out rather quickly that it’s not going to work. Also, many of the defendants to UK patent cases are based, or have subsidiaries, in UPCland. The UPC may soon even order preliminary injunctions over UK parts of patents (SEPs and non-SEPs alike).

Hopefully, the appellate hearing starting on Tuesday will show that there is a good-faith effort underway to make interim licenses a rare exception and to arrive at a reasonable legal standard. Should the agenda be to make interim licenses the new normal, the rest of the world must take swift and forceful action.