Time after time after time, every single defendant in Munich who was found to have infringed a presumed-valid SEP was deemed an unwilling licensee. Then came ZTE.
Context: The standard-essential patent (SEP) litigation between China’s ZTE and South Korea’s Samsung is one of the most interesting FRAND (fair, reasonable and non-discriminatory licensing) disputes ever. Besides a world record for scattershot FRAND litigation (Samsung brought standalone FRAND claims in the UK, U.S., and Germany, plus in the European Telecomunications Standards Institute (ETSI)), it produced a few “firsts”, two of which were particularly noteworthy:
- ZTE became the first (of several) SEP holders to prevail in a UK appeal of an interim-license declaration (October 31, 2025 ip fray article).
- The Munich I Regional Court’s 7th Civil Chamber (Presiding Judge Dr. Oliver Schoen (“Schön”), Judge Katalin Tözsér, and Judge Dr. Florian Schweyer) granted ZTE the world’s first-ever injunction against an ETSI complaint proceeding (October 15, 2025 ip fray article).
What’s new: ZTE has now achieved something that will go down in SEP litigation history. No defendant to a SEP case had ever been deemed by a Munich-based court to have been FRAND-compliant in terms of doing what a willing licensee has to do — be it in the Landgericht München I (Munich I Regional Court), which started getting them in the second half of the 2010s and soon became the world’s number one SEP injunction forum, its appeals court (Munich Higher Regional Court), or the Unified Patent Court’s (UPC) Munich Local Division (LD).1 Now ZTE has achieved it. The Munich I Regional Court’s 21st Civil Chamber (Presiding Judge Dr. Hubertus Schacht, Judge Dr. Benz, and Judge Obermeier) held a Samsung v. ZTE countersuit trial yesterday (case no. 21 O 366/25) and found that ZTE had properly discharged its FRAND obligations. Samsung got no injunction. The court dismissed the case2 as “presently meritless”.
Direct impact: So far, neither party has gained leverage over the other, but ZTE has made far more headway and it appears only a question of time now when Samsung will take a license (March 19, 2026 ip fray article) . We are in the process of finding out more details about the Munich miracle.
Wider ramifications:
- This may look like hell is freezing over, but SEP holders should not allow themselves to be discouraged from filing in Munich. This is a cross-licensing situation, with ZTE certain to receive a balancing payment as the net licensor and Samsung trying to build leverage through aggressive demands over its own patents despite asymetrical exposure (Samsung’s standards-implementing product business is far larger than ZTE’s). That makes ZTE an atypical defendant. Countersuits were previously brought in Munich by others. OPPO’s countersuits against Nokia started slowly and then built momentum, but that was late in the game and a settlement fell into place before any OPPO v. Nokia FRAND defense was assessed by the court.
- It does, however, mean that a net licensee (here, Samsung) cannot use its own patents (and the demands it makes about them) to hold out and potentially devalue the portfolio of the net licensor (the party that will ultimately receive a balancing payment).
- Last month, ZTE defended against Samsung’s standalone FRAND antitrust case in the Frankfurt Regional Court (February 25, 2026 ip fray article). In that case, as we have meanwhile found out, Samsung lost because it failed to convince the court that the royalty rate it wanted to force ZTE to accept was within the FRAND range. What Samsung was prepared to pay would have had to be at least at the upper end of the FRAND range, and based on license agreements and a top-down analysis, the Frankfurt court was unconvinced of Samsung having offered enough for ZTEs rejection to constitute an antitrust violation.
The patent-in-suit is EP3580883 (“Method and apparatus for nr-dmrs sequence design”).
We will update this article with more information if and when we obtain it.
Today, a European Patent Office (EPO) opposition panel is hearing ZTE’s challenge to the validity of a SEP Samsung was asserting in the UPC’s Mannheim LD, which stayed the case over that one as the patent appeared too likely to be revoked (March 18, 2026 ip fray article).
Court and counsel
Panel (21st Civil Chamber): Judge Dr. Hubertus Schacht, Judge Dr. Benz, and Judge Obermeier.
Counsel for counterclaimant3 Samsung: rospatt.
Counsel for successful countersuit-defendant ZTE: Vossius (ZTE’s lead counsel in various German ZTE cases over the years: Dr. Georg Andreas Rauh). On the wider dispute, Vossius collaborated with Taliens (Dr. Thomas Lynker). ZTE in-house counsel: Juliane Buchinski.
- Munich has various other courts, but they either don’t hear patent cases at all or no FRAND defense succeeded there. The UPC’s Central Division (CD) has one of its three seats in Munich, but it primarily gets revocation actions and has not dealt with a SEP infringement case to date. There are other German courts in Munich, but the Federal Patent Court does not adjudicate infringement cases (primarily nullity actions and appeals from the German Patent and Trademark Office); other specialized courts have different remits (e.g., the Federal Tax Court and a military service court); the other regional court (Munich II Regional Court, which is for cases originating from the surroundings of Munich) is not among the German regional courts with which patent infringement lawsuits can be filed; the lower court (Local Court of Munich) is of a court category that does not get patent cases in the first place; and this also applies to the Bavarian Supreme Regional Court, which has no patent jurisdiction. ↩︎
- Formally two cases (different ZTE entities got served at different times as service of process is faster within Europe than from Europe to China), but practically one. ↩︎
- Samsung brought the case as a counterclaim, which the court severed from a ZTE v. Samsung case as German courts never adjudicate more than one patent in the same case unless they are from the same patent family. In the UPC there would theoretically be more flexibility about that, but multi-patent-family cases are usually split up there as well, largely following the German tradition. ↩︎