Context:
- Wilus v. HP, Samsung, and Askey
- Sisvel’s WiFi 6 pool has signed up dozens of licensees, mostly without litigation (even Cisco, which advocates against strong standard-essential patent (SEP) enforcement) and in some cases, such as HP (November 18, 2025 ip fray article), after (usually short-lived) litigation.
- Wilus is a small research firm that has made numerous contributions to standards. It is a Sisvel pool licensor, and Sisvel is generally Wilus’s licensing agent for WiFi 6 SEPs.
- Last month, the Munich I Regional Court granted Wilus a Germany-wide injunction against ASUS over a WiFi 6 SEP (January 30, 2026 ip fray article). But there are signs that ASUS may take its chances in a contempt proceeding (February 15, 2026 ip fray article).
- In September 2024, Wilus brought SEP infringement lawsuits in the Eastern District of Texas against HP (meanwhile settled thanks to the Sisvel deal), Samsung (which has recently filed a motion to dismiss), and ASUS subsidiary Askey, a WiFi router and access point maker. The three cases, involving overlapping patents, were consolidated.
- U.S. precedent
- There may have been SEP injunctions in the U.S. over mechanical standards many decades or even more than a century ago, but in our times, the only known SEP injunction was CSIRO v. Buffalo in the United States District Court for the Eastern District of Texas in 2007, also over a WiFi SEP and notably after the Supreme Court’s eBay v. MercExchange decision on patent injunctions (2006). The United States Court of Appeals for the Federal Circuit vacated CSIRO’s injunction. The case settled in 2009.
What’s new: Based on a stipulation under which Askey admits to the infringement of several valid SEPs, Wilus is now asking Judge Rodney Gilstrap for a permanent injunction (on an expedited track). Yesterday, the public redacted versions of the related documents became accessible:
- Wilus cites to the CSIRO decision, but also to the June 2025 Statement of Interest by the United States (filed by the Department of Justice (DOJ)) in Radian Memory v. Samsung Electronics (PDF), which generally advocates better access to patent injunctions.
- Wilus argues that after three years of hold-out, it is key to bring an end to the dispute, and that there is irreparable harm to its research activities, which are funded by its licensing income stream. In this particular case, that harm is exacerbated by the fact that the infringement of at least one valid SEP is, by now, even undisputed.
- Wilus is concerned over how Askey’s hold-out may influence the (un)willingness of other implementers to take a license.
Direct impact: The pendency of that motion, combined with the situation facing ASUS in Munich, may spur settlement talks. If the court has to decide, Wilus’s chances depend on whether Judge Gilstrap will attach more weight to
- the case-specific hold-out facts in conjunction with precedent from his own district and current U.S. government policy than to
- the CSIRO outcome on appeal, the fact that a SEP injunction in the U.S. would be almost unprecedented, and the absence of a willfulness determination as a result of a stipulation.
Wider ramifications:
- The United States is presently an outlier on the global SEP litigation map. Patentees seek import bans from the United States International Trade Commission (USITC or ITC), where the only SEP-based exclusion order was vetoed and other cases settled prior to final rulings, and damages in district court, but in Europe, Latin America and Asia, SEP injunctions have repeatedly been granted by various courts. By way of comparison, the Munich I Regional Court alone has already granted five in the first six weeks of this year (Wilus v. ASUS, Nokia v. ASUS, Nokia v. Acer, Broadcom v. Renault, InterDigital v. Disney). There is, however, no blanket rule that SEP holders can never get a U.S. injunction.
- This case has landmark potential. It can make an impact even beyond SEPs if some of Wilus’s arguments, such as the irreparable harm from a licensing firm lacking the funding for more innovative work due to hold-out, are accepted.
Procedural situation
A trial will be held in the summer, and unless the parties settle, it will be necessary to determine damages. But the jury will not have to make a decision on whether the asserted claims from seven Wilus patents are valid and infringed.
In exchange for Askey’s unusually far-reaching concession, Wilus waived the pursuit of willfulness enhancements. For Wilus’s access to an injunction, this is of some relevance, but it should be overestimated. Willful infringement is not an eBay factor. It may help psychologically, and for the first decade after eBay there are statistics that suggests it increased the likelihood of an injunction by about 10%, but by now willfulness is no longer a major part of the consideration. Also, Askey’s infringement is undoubtedly willful at this stage, even if there won’t be a formal finding to that effect.
Wilus says “Askey has been in possession of a FRAND running royalty offer
for more than three years” and doesn’t want to wait. It therefore asks the district court to
- enter a partial final judgment based on the parties’ stipulation on the technical merits,
- grant a permanent injunction, and
- have a jury determine damages for past infringement later (just as planned).
Here’s Wilus’s motion for partial final judgment on liability (as a basis for an injunction):
The header lists the other parties, even HP (which is no longer in the case), but what this article discusses is exclusively about the Wilus v. Askey part.
Injunction request and eBay argument
This is Wilus’s motion for a permanent injunction:
Wilus describes itself as a “small, employee-owned research laboratory” (20 engineers) that needs its licensing income stream from its portfolio of more than 3,500 patents to fund the next wave of inventions. Therefore, it’s not just a question of whether it will eventually get paid: the earlier it gets paid, the more resources Wilus has to contribute to the state of the art. Otherwise, there will be “forgone opportunities for Wilus to invent and contribute to enhancing the consumer welfare”, which relates to three of the four eBay factors: irreparable harm, inadequacy of monetary relief, and the public interest.
In the CSIRO decision in the Eastern District of Texas (Judge Leonard Davis at the time), that logic was also recognized. Askey will predictably point to the Federal Circuit decision in that case and to other case law according to which SEP royalties are only a question of money. But if Askey is deemed an unwilling licensee, then there is scope for a SEP injunction even under U.S. law.
Wilus also stresses the harm that its licensing program suffers from hold-out by one infringer that could dissuade others from taking a license. That argument finds support in the DOJ’s Statement of Interest in Radian.
Then there is also an unwillingness argument that Askey has allegedly “never meaningfully engaged.” That is a bold accusation. If it is true, Askey is indeed at risk of being enjoined.
The balance-of-hardships part of the analysis notes that Askey is “a large corporation with numerous business and product lines, and it will not go out of business or lose its Wi-Fi 6 product lines even if the requested injunction is entered.” But above all, the argument is that Askey should stop infringing.
This motion is somewhat ambitious, but there may be case-specific facts that could result in an injunction. The question is whether ASUS (Askey’s parent company) wants to take risks in another jurisdiction while already facing patent enforcement in Germany.
Counsel
Wilus’s motion was brought by Russ August & Kabat’s Marc A. Fenster, Reza Mirzaie, Dale Chang, Neil A. Rubin, Jacob Buczko, Jonathan Ma, and Mackenzie Paladino; and Miller Fair Henry’s Andrea L. Fair.
Askey is being represented by Finnegan’s Ming-Tao Yang, Jeffrey Daniel Smyth, and Ralph A. Phillips.