The UK Supreme Court has this morning handed down judgment in the much anticipated FRAND case of Unwired Planet v Huawei [2018] EWCA Civ 2344, as well as Conversant v Huawei and ZTE [2019] EWCA Civ 38, which was heard alongside Unwired Planet.

In short, the Supreme Court has dismissed the appeals confirming that:

  • A global licence can be FRAND, and that the courts of England and Wales have jurisdiction to determine the terms of such a licence.
  • The ‘non-discrimination’ element of the FRAND obligation is not hard-edged. In other words it does not require patentees to offer licences on terms no less favourable than those offered to an equivalent licensee.
  • There is no mandatory requirement to follow the protocol set out in the CJEU case of Huawei v ZTE when conducting FRAND negotiations, other than the requirement to provide notice to the implementer before bringing proceedings.
  • England is a suitable forum for the Conversant v Huawei and ZTE case in the particular circumstances of that case.

The Supreme Court also considered an argument made by Huawei (but not considered by the lower courts) that an injunction was not an appropriate remedy and that damages alone would be sufficient. The Supreme Court rejected this argument.

The judgment can be found here and our full analysis of the Supreme Court’s decision can be found here.

Andrew Moir

Andrew Moir
Partner, Intellectual Property and Global Head of Cyber & Data Security
+44 20 7466 2773

David Webb

David Webb
Associate, London
+44 20 7466 2629