This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on the National Archives and other websites. The date and time for hand-down is deemed to be Monday 24 March 2025 at 2pm.
Mr Justice Mellor :
Introduction
- This judgment concerns an application, in advance of the CMC, to obtain a trial listing of a FRAND trial comprising 10-15 sitting days. It suffices to refer to the Claimants collectively as Samsung and to the Defendants as ZTE. Both have substantial portfolios of SEPs which have been declared essential to cellular standards.
- After 4 hours of oral argument on 13 March 2025, I announced my decision which was to list the FRAND trial in the window commencing on 12 January 2026 with a time estimate of 10-15 sitting days, with reasons to follow. This judgment contains my reasons for so ordering.
- At the outset I mention that various pieces of information alleged to be confidential were included in the extensive evidence served on this application. At the start of the hearing, I granted a CPR31.22 Order pro tem but made it clear that I had already identified (and therefore excluded from the scope of the order) information claimed to be and therefore designated as confidential for which I could see no conceivable basis for any need to maintain confidence. This included the two pieces of information indicated in the next paragraph by underlining.
- In 2021 the parties entered into a global cross-licence of their respective SEPs. The cross-licence has expired, but negotiations for a fresh cross-licence began in 2023 some six months before expiry and have continued without agreement. The parties agree that any new agreement has to be global in its scope. The parties also agree that Samsung will be (or is highly likely to be) the net paying party under any future cross-licence and this is because Samsung is one of the largest suppliers of cellular devices in the world. The essence of the dispute between the parties is what payment(s) are FRAND in respect of the cross-licence. In other words, it is about money.
- Samsung's application is brought on the understanding (which I have to discuss below) that there is a slot in the Patents Court diary which could accommodate this trial in the late Michaelmas term. Since there are only 15 sitting days in December 2025 before the Christmas vacation, the trial listing sought by Samsung would probably have to have a trial listing window starting on 24 November 2025 at the latest to allow time for sufficient judicial pre-reading and time for the parties to prepare their written closing submissions.
- ZTE resist the application and say the FRAND trial should be listed in the ordinary course which would mean a trial window starting on 14 April 2026. ZTE are correct in saying that a trial listing prior to that requires expedition.
- Having made my own enquiries of the listing situation in December 2025, in advance of the hearing I invited the parties to address the following three listing possibilities with the trial window starting on (1) 24 November 2025 (2) 12 January 2026 and (3) 14 April 2026.
- In terms of when a judgment could be expected from a FRAND trial from those starting points, the earliest (assuming the Judge has judgment writing time set aside following the trial, and accounting for some time off over Christmas) dates are likely to be end February 2026, end March 2026 and end June 2026. I am well aware that FRAND judgments have taken considerably longer to deliver in some previous cases, for different reasons, many of which can be avoided or ameliorated by suitable planning together with the benefit of experience.
- Although, at first sight, the difference between the earliest and latest of those dates seems relatively slight – a matter of 5 months as regards the start of trial and hopefully slightly less as regards judgment – as I shall explain, it is clear that both sides regard the short time period (whatever it is) as critical, albeit for different reasons. Indeed, the considerable resources which were devoted to this application by both sides reinforce that point.
Background
- I have already set out the essential background in [3] above. Against that background, Samsung commenced this action on 19 December 2024 seeking, inter alia: (i) declarations of essentiality and infringement in connection with UK 5G SEPs owned by the First Claimant, (ii) a FRAND injunction (and damages) in respect of the same, (iii) declarations of invalidity, non-essentiality and non-infringement in connection with UK declared SEPs owned by the First Defendant, and (iv) declaratory relief in respect of FRAND terms for a cross-licence covering Samsung's and ZTE's global portfolios of SEPs. From the outset, Samsung offered an undertaking to the Court to take whatever licence was determined to be FRAND.
- For reasons it is not necessary to go into (and which are supposedly confidential), the claim was initially limited to 5G but, as I shall explain, has now been expanded to cover SEPs relating to the 2G-5G standards.
The proceedings between the parties
- It will be seen that, starting with this action, there are now 17 sets of proceedings between the parties relating to the underlying dispute. These were debated at length in the evidence and various disputes raised. To the extent that any of them seem to matter to this application, I have resolved them in what follows. I relate the key events in chronological order.
- On 20 December 2024 (i.e. one day after the commencement of this action), Samsung filed an EU law competition claim against ZTE in Frankfurt (the 'Frankfurt Proceedings').
- On 23 December 2024 (i.e. two working days after the commencement of this action), ZTE commenced proceedings in the Chongqing Intermediate People's Court in China seeking a determination of the terms of a global FRAND cross-licence between the parties covering the parties' wireless communication SEPs (2G-5G) (the 'Chongqing Proceedings').
- Samsung has challenged jurisdiction in the Chongqing Proceedings and those proceedings have not yet been served on Samsung entities incorporated outside of China. As ZTE submit, Samsung's stance is currently causing some delay to the progress of the Chongqing Proceedings. Having said that, Samsung estimate that the trial in those proceedings is likely to take place between January and March 2026 (which prompted Mr Bloch KC to comment that Samsung cannot have much faith in their jurisdiction challenge).
- On 1 January 2025, ZTE wrote to Samsung (i) inviting it to agree to the determination of FRAND terms for a global cross-licence in the Chongqing Proceedings and (ii) offering to stay or terminate all other global litigation (as to which see below) in the event of Samsung's agreement (the "Global Litigation Standstill Offer"). That Offer has not been accepted by Samsung. It remains open.
- Also on 1 January 2025, ZTE commenced the following actions for infringement of various European Patents. As is usual in Germany and in the UPC each action involves one patent:
i) an action for infringement of EP(DE)2,654,356 in Munich ('ZTE Munich 1').
ii) an action for infringement of EP 3,905,730 in the UPC ('ZTE UPC 1').
iii) an action for infringement of EP 3,557,874in the UPC ('ZTE UPC 2').
- On 10 January 2025, ZTE commenced a second action for infringement in Munich ('ZTE Munich 2').
- On 15 January 2025, ZTE commenced an action for infringement in Brazil ('ZTE Brazil').
- On 16 January 2025, ZTE commenced two actions for infringement in Hangzhou ('ZTE Hangzhou 1 & 2').
- On 23 January 2025, ZTE obtained a preliminary injunction against Samsung in Brazil, apparently on an ex parte but on notice basis.
- On 24 January 2025, Samsung challenged jurisdiction in the Chongqing Proceedings.
- In this action, although jurisdiction was initially disputed by ZTE, ZTE dropped their jurisdiction challenge and served their Defence and Counterclaim on 11 February 2025. A hearing had already been appointed for the determination of ZTE's jurisdictional challenge, floating over 26-28 March 2025, but this has now been re-purposed as the hearing of the CMC. The CMC will take place around 2 weeks after this hearing but experience shows that the listing situation can change in a short period of time, so it was appropriate to bring this application in advance of the CMC.
- On 14 February 2025, Samsung proposed that the parties commit to enter into the English Court-Determined Licence and bring an end to all other proceedings. ZTE has not accepted that offer.
- On 25 February 2025, Samsung brought anti-trust proceedings in the US District Court for the Northern District of California (the "NDCA Proceedings").
- ZTE say that the precise nature of the relief sought in the US Proceedings is currently unclear. However, ZTE contended that it appears to include anti-suit type relief preventing ZTE's pursuit of its foreign patent infringement actions (see below) and, potentially, compelling ZTE to give an undertaking to this Court to enter into FRAND licence determined by this Court, an undertaking which could not be compelled by the English Court itself.
- Samsung dispute this characterisation of the NDCA Proceedings. Mr Baldwin's evidence was that the NDCA Court will not determine the terms of a global FRAND cross-licence between Samsung and ZTE but will instead focus on the conduct of ZTE to ascertain whether it has breached its contractual FRAND obligations and/or US antitrust law. Perhaps more pertinently, there was no suggestion that the relief highlighted by ZTE would be likely to be granted in the period between now and the FRAND trial in this jurisdiction. Even if some of it is, ZTE would have only themselves to blame.
- On 28 February 2025, as well as serving their Reply, Samsung sought ZTE's consent to amend the Particulars of Claim in these proceedings, inter alia, to (i) allege infringement of two additional Samsung 4G/5G SEPs, (ii) seek declarations of invalidity and/or non-essentiality in respect of a ZTE 4G SEP, (iii) extend the scope of FRAND licence that the Court is asked to determine to cover earlier ETSI standards (2G-4G) as well as 5G and (iv) seek a declaration that the FRAND Commitment requires ZTE to enter into an "Interim Licence" whereby ZTE's ETSI SEPs are licensed to Samsung pending a determination of FRAND terms. Samsung contends that the appropriate form of the Interim Licence is a cross-licence of the parties' ETSI SEPs that is adjustable so as to be brought into line with FRAND licence determined by the English Court. ZTE helpfully consented to the proposed amendments.
- Also on 28 February 2025, Samsung launched:
i) a counterclaim in the ZTE Munich 1 proceedings for infringement ('Samsung Munich Counterclaim').
ii) two claims for infringement in the UPC (Samsung UPC 1 & 2).
iii) two claims for infringement in Hangzhou (Samsung Hangzhou 1 & 2).
- On 6 March 2025, Samsung launched an infringement claim against ZTE in Munich together with a request that it be heard with Samsung's counterclaim in ZTE Munich 1 ('Samsung Munich 2').
- Overall, it appears that there are only two sets of proceedings in which a Court is being invited to set global FRAND terms between Samsung and ZTE: this action and the Chongqing Proceedings.
The progress of this action to date
- As indicated above, due to the amendments recently made by Samsung, the main pleadings are yet to be completed. Perhaps more importantly, neither party has yet set out its FRAND Statement of Case, although there was some discussion in the evidence at a high level of the issues which were likely to have to be determined at trial.
- No doubt as a result of the recent developments in the Court of Appeal case law on interim licences, on 11 March 2025, Samsung issued an application seeking, inter alia:
i) a declaration that the Defendants are in breach of their obligations of good faith under clause 6.1 of the ETSI IPR Policy,
ii) a declaration that a willing licensor in the position of ZTE and a willing licensee in the position of Samsung would enter into an Interim Licence in respect of each other's global portfolio of Cellular SEPs with appropriate royalty terms to be determined by this Court (subject to adjustment and amendment so as to bring the terms into line with the terms of the final cross-licence on FRAND terms as finally determined by the Court or otherwise agreed between the parties), and
iii) a declaration that if, within seven days of the Court's Order declaring the terms of an Interim Licence, ZTE refuse to offer Samsung an Interim Licence with terms as aforesaid, ZTE are in breach of their FRAND commitments under the ETSI IPR Policy and are unwilling licensors.
- Samsung seek a two-day hearing of this application in around May 2025 and I took this into account when considering the burden on the parties of the expedition I granted.
Offers made by each side
- Each side has made an offer or offers to resolve the procedural mess, but each side's offer is dependent on the other abandoning their preferred FRAND determination.
- In addition, each side has made offers relating to an interim licence, albeit the sum payable on an interim basis in ZTE's offer was considerably greater than that offered by Samsung. Although ZTE suggested their offer was in accordance with what the Court of Appeal indicated in Lenovo v Ericsson [2025] EWCA Civ 182 at [156] (i.e. the mid-point between the respective interim licence offers), I do not think that is correct. The indication given by the Court of Appeal needs to be viewed against the circumstances in that case. The judgment was given on 28 February 2025 and the interim licence offers were until 31 December 2025, against the prospective licence term to 31 December 2028. It is clear that an interim licence offer does not need to apply to the whole period of the prospective licence, but only until FRAND terms are determined or agreed.
- Naturally, the interim licence offers are confidential, but I will say that the sum payable in ZTE's offer seems unnecessarily and unreasonably high and provides some further indication of hold up.
This Application
- This Application was issued on 24 February 2025, initially supported by the first witness statement of the same date of Steven Baldwin, a partner in Samsung's solicitors, plus a witness statement from Dr Jan Ebersohl, covering the position in Germany and the UPC. I should also mention that I was also provided with the earlier witness statement of Nicola Dagg in support of Samsung's application for permission to serve these proceedings out of the jurisdiction.
- This hearing was listed for 13 March 2025 and since matters continued to develop, Mr Baldwin made a second updating witness statement dated 5 March 2025.
- Dr Laakkonen, a partner in ZTE's solicitors responded with his witness statement dated 7 March 2025. Mr Baldwin responded to certain points in Baldwin 3 dated 11 March and Dr Laakkonen filed a second witness statement dated 12 March 2025.
- I received Samsung's Skeleton Argument dated 7 March 2025, well in advance and apparently prepared in advance of receipt of Laakkonen 1. ZTE filed their main Skeleton dated 10 March 2025. Having reviewed those Skeletons, I asked the parties to prepare a Chronology, preferably agreed, which they supplied on 12 March 2025.
- Finally, overnight before the hearing, I was supplied with ZTE's Supplemental Skeleton dated 12 March 2025, to which was annexed a diagram illustrating the degree of expedition in the four cases relied on in Samsung's Skeleton (which I discuss below). ZTE's point was that the expedition sought by Samsung in this case required the parties to prepare for the FRAND trial in only 8 ½ months, a much shorter time than in any of those four cases.
- Overall, the witness statements served on this application amounted to over 120 pages, with numerous exhibits. Bearing in mind this was just a listing issue, it will be apparent that there was very considerable overkill on both sides and I dread to think what costs were incurred on just this listing issue (I was not provided with any Schedules of Costs). Having said that, the resources devoted to this application on both sides reflects the parties' perception of the importance of the short period at issue. Furthermore, I am now much better informed to be able to conduct the CMC in 2 or so weeks time and to exercise active case management thereafter.
- The final point I should mention by way of setting the scene is that, having done my pre-reading, I asked the parties to be ready to address this question at the hearing, namely:
'If a SEP licensor engages in hold up: what remedy or remedies are available; and, what penalty or penalties can be imposed?
- When addressing this question, Mr Segan KC made the point that remedies for hold up are almost all novel and relatively untested. First, he noted the availability of declarations as regarding a party being an unwilling licensee and regarding an interim licence. In that regard, I respectfully endorse the view of Zacaroli J. in Lenovo v Interdigital [2024] EWHC 1922 (Pat) at [19] that the notion that a party which (a) had engaged in an expensive FRAND trial but (b) had not undertaken to enter into a licence on terms determined by the Court to be FRAND, would nevertheless (c) ignore those terms, is a particularly bleak view. The same sentiment has been expressed by Arnold LJ as regards declarations for interim licences. Second, Mr Segan KC noted an unwilling licensor may be deprived of a FRAND injunction. Third, he mentioned the possibility of ASIs, but explained the concern over seeking an ASI regarding infringement proceedings in Germany or the UPC is that it may result in the implementer being branded an unwilling licensee. Fourth, he noted that amongst the possible monetary remedies are: (i) depriving a SEP owner of interest on past royalties (in an extreme case), (ii) an award of damages, but noted there has been no decision anywhere on the point, (iii) a possible anti-trust damages claim. Fifth, he mentioned anti-trust complaints to the regulatory authorities.
- Understandably, Mr Segan KC pointed out that the availability of these possible remedies has not proven a sufficient disincentive so far, pointing to Panasonic v Xiaomi, Alcatel/Nokia v Amazon and Lenovo v Ericsson by way of example. That they have not is not a surprise, since the whole idea is to exert such pressure on an implementer that it is forced into agreeing terms: terms which will preclude any comeback.
- Although there was agreement that hold up is a breach of a SEP owner's ETSI undertaking, the remedies for such breaches are a matter of French law and French law is likely to give rise to some form of financial compensation, thereafter the parties diverged. Whether specific performance could be ordered was disputed by ZTE. There was mention of anti-suit injunctions, but, as I have indicated, experience shows that it is rarely wise to get into a potential anti-suit/anti-anti-suit battle with another Court.
- Mr Bloch KC also mentioned that it is clear from the decision of the UK Supreme Court in Unwired Planet v Huawei that if, in a particular case, a party is guilty of hold up, it will not get the benefit of a UK injunction. He made the point that because that is the only consequence, the jurisdiction which the UK Courts have taken in relation to FRAND cases does not give rise to any comity issues. He followed that with a submission that if I were to accede to Samsung's application, there will be a very real comity problem.
- That submission prompted me to ask him to explain why there would be a comity problem with a trial in December 2025 or January 2026, but not with a trial in March/April 2026. His answer seemed to be that any acceleration of the FRAND proceedings, either here or in Chongqing, would undermine the integrity of the other process. This submission seems to me to be founded on a misapprehension that the decision of the first court to decide FRAND automatically takes precedence. This is incorrect. Both courts in this case are endeavouring to decide the dispute which the parties have brought before it, and no more than that. Neither Court is acting or is endeavouring to act as 'a global policeman'. In any event, his submission avoided addressing the real problem here, which is the risk of substantial damage to Samsung.
- In my view, resorting to remedies or penalties for hold up is another bleak view of the problem, and would result in yet further unnecessary and wasteful costs. If it is possible to do so, it seems to me to be far better to seek to prevent actions aimed at hold up having their intended detrimental effects in the first place.
Analysis of the current situation
- To date, therefore, Samsung has launched 9 sets of proceedings (including this action) and ZTE have launched 8 sets of proceedings. On the basis (apparently) that both sides are seeking injunctive relief (what I might call 'full' injunctions as opposed to FRAND injunctions), Mr Bloch KC submitted on behalf of ZTE that there is 'symmetry' in the parties' positions, which apparently meant that no expedition should be granted. It is true there is symmetry in certain aspects but, where it matters, there is not. Apart from the massive waste of time, effort and costs involved, the number of sets of proceedings does not matter. What matters are the likely effects of these proceedings in the period before a FRAND determination is made.
- Samsung's point is that they are at risk of injunctions being granted against them in several major markets before any FRAND determination can be made, whereas ZTE face either no or a much smaller risk.
Samsung's position
- So far as Samsung's position is concerned, their sales in those major markets are confidential but there is no doubt whatsoever that enforcement of an injunction in any of the infringement proceedings brought by ZTE would cause very significant irreparable damage to Samsung, as well as very significant damage which could be remedied in a damages claim if such a claim is available under the ETSI terms (which remains something of an open question). In the context of the underlying dispute, and Samsung's undertaking to take whatever licence is determined to be FRAND in this action, Samsung submit that the only purpose of ZTE seeking injunctive relief is to pressurise Samsung into agreeing ZTE's supra-FRAND rates.
- I make the obvious point that whether any injunction is granted and whether it is enforced in any of the proceedings outside England & Wales is a matter for the Court in question and not for this Court. Equally it is entirely a matter for the Court in question (and not this Court) to consider whether, by granting an injunction against a party which has committed to taking a licence on whatever terms are determined to be FRAND by a court properly seized of the issue, the grant of injunctive relief may be facilitating hold up.
- However, that does not mean that this Court is deprived of the ability, using its own procedures, to grant some acceleration of the underlying dispute (what terms are FRAND) to assist a party which is able to demonstrate a clear threat of substantial damage by what appears to be a determined campaign of hold up.
- In my view, although I acknowledge that each case must turn on its own particular facts, it is clear in this case that ZTE's campaign of litigation seeking injunctive relief is straight out of the overly aggressive SEP owner's current playbook, a playbook which has now been recognised by numerous Judges in the Patents Court and in the Court of Appeal.
- I can take the circumstances related by Zacaroli J (as he then was) in Alcatel/Nokia v Amazon [2024] EWHC 1921 (Pat), [2024] RPC 26, by way of example. To put the case in context, in July 2024, the Judge heard two applications to expedite a FRAND trial, the other being in Lenovo v Interdigital [2024] EWHC 1922 (Pat). Both cases were aiming for the same slot in June/July 2025. In the result, the Judge gave a trial listing of 20 days in a window commencing on 23 June 2025 to Lenovo v Interdigital and a trial listing, again of 20 days, starting in October 2025 in Alcatel/Nokia v Amazon.
- As Zacaroli J said:
'136. Amazon relies on Nokia's worldwide campaign of litigation, commenced in October 2023. Those include proceedings in: Germany (where the earliest infringement trial is listed to be heard in September 2024, with others in the following months); the ITC (in the US, where it is anticipated that an exclusion order could be issued in April 2025, becoming enforceable in June 2025); Brazil (where an injunction was obtained in December 2023, lifted temporarily, but reinstated in January 2024); India (where there is a hearing in August 2024, although it is anticipated that there will be a number of further hearings over an uncertain time period before an injunction would be granted); and the Unified Patent Court (where a decision is anticipated in late 2024 or early 2025).
137. Amazon contends that it is accordingly at increasing risk of being excluded from a number of major markets over the course of the next year, and will suffer significant harm as a result. The only means of avoiding that damage would be to give in to the commercial pressure by agreeing to licences on the supra-RAND terms which Nokia demands.'
- The circumstances were similar in Lenovo v Interdigital:
'11. [Counsel for Lenovo] refers to the fact that there is as yet no mechanism devised by the courts for holding the ring pending determination of a FRAND licence. A patentee such as InterDigital is therefore free to take action in other jurisdictions to try and prevent an implementer from selling its products, with the aim or at least consequence of encouraging it to enter into licences at rates demanded by the patentee – which the implementer contends are "supra" FRAND rates.
12. He submitted that while the UK Courts – which have taken on the task of setting global FRAND terms – have not so far identified an effective way of holding the ring pending trial, what they can do is to minimise the period during which an implementer is suffering damage, by expediting the trial.
13. He further submitted that InterDigital is participating in classic "hold-up" behaviour: it has already obtained an injunction in Germany precluding Lenovo from selling its products there, and is pursuing proceedings in the USA which, if successful, are likely to have the effect of excluding Lenovo from using five of its patents there, from about July 2025. This is a case, accordingly, where Lenovo can point to actual as well as threatened harm as a result of the delay between now and obtaining judgment in the FRAND trial.'
- The Judge referred to Interdigital disputing that Lenovo was suffering or was likely to suffer any serious harm and also referenced the lack of evidence beyond broad statements. However, he continued:
'16. The very fact that InterDigital is insistent on maintaining its injunction, and refuses to stay enforcement pending trial, is compelling support for the conclusion that damage is caused by it. InterDigital accepts that it has sought the injunction because of a perceived benefit to it in doing so. That is likely to be, it seems to me, because the injunction causes harm to Lenovo.'
- The same playbook was described by Arnold LJ at [108] in the appeal from Richards J. on the interim licence issue in Lenovo v Ericsson [2025] EWCA Civ 182, that case being the third in the trio of cases on the topic of interim licences in FRAND cases which have been heard by the Court of Appeal in recent months. As Arnold LJ said at [1]:
'It is the third appeal on this issue to come before this Court in quick succession following Panasonic Holdings Corp v Xiaomi Technology UK Ltd [2024] EWCA Civ 1143, in which the Court declared that a willing licensor in Panasonic's position would grant Xiaomi an interim licence, and Alcatel Lucent SAS v Amazon Digital UK Ltd [2025] EWCA Civ 43, in which the Court held that Amazon had a real prospect of success on their claim for a declaration that a willing licensor in Nokia's position would grant Amazon an interim licence, and therefore Amazon should be permitted to amend their statements of case to advance that claim.'
- In that appeal, the first ground of appeal concerned the SEP owner's obligation to grant an implementer a licence on FRAND terms in good faith. For understandable reasons, the arguments were framed by reference to the decision in the first of those cases, Panasonic v Xiaomi:
'106. Lenovo's argument starts from the two preliminary points which I identified in Panasonic v Xiaomi:
"79. …. The first is that SEPs differ in a key respect from other patents. Normal patents are monopoly rights, and the primary remedy for infringement is an exclusionary injunction so as to preserve the monopoly. This is not true of SEPs, because they are subject to the SEP holder's obligation to grant licences to any implementer who desires a licence on FRAND terms. An implementer is entitled to such a licence as of right. Thus SEPs are not property rights of the same status as other patents. In effect, the SEP regime is a liability regime in which the SEP holder's remedy is a financial one. The only role for an injunction in this regime is to enforce the SEP holder's entitlement to that financial remedy.
80. The second point is that the implementer is entitled to a licence from the first day it implements the standard provided that it is willing to take a licence on FRAND terms. This is the corollary of the points I made in InterDigital v Lenovo at [187]-[188] …. Furthermore, the implementer is entitled to a licence which is continuous and not subject to interruption by injunctions obtained by the SEP holder."'
'107. Lenovo acknowledge that, unlike Panasonic in Panasonic v Xiaomi, Ericsson did not invoke the jurisdiction of the English courts to determine FRAND terms on a global basis and have not undertaken to enter into a cross-licence on the terms determined by the Patents Court to be FRAND. Lenovo argue that these factual differences from Panasonic v Xiaomi are not material, because what matters is that, like Xiaomi, Lenovo have undertaken to enter into a global cross-licence on the terms determined by the Patents Court to be FRAND (subject to any adjustment required on appeal). This undertaking will be enforceable by Ericsson with severe sanctions for non-compliance by Lenovo (see Panasonic v Xiaomi at [37]). It follows that Ericsson are guaranteed to receive payment in full of the royalty which the Patents Court determines to be FRAND (or as adjusted on appeal) in respect of the entire period since Lenovo started implementing any of the relevant standards, taking into account the fact that a range of rates may be FRAND, together with realistic interest in respect of past sales. Thus Ericsson will not need to rely upon the threat of an injunction in this jurisdiction in order to enforce the Patents Court's determination as to FRAND terms. The fact that Ericsson have not undertaken to enter into a cross-licence on the terms determined by the Patents Court to be FRAND does not affect this. It simply means that Ericsson will be free to decline to accept the terms determined by the Patents Court. (That would prevent Ericsson from enforcing any of their SEPs against Lenovo in this jurisdiction, but Ericsson do not seek to do so.)
108. In those circumstances, Lenovo contend that the central question posed by this Court in Panasonic v Xiaomi at [82] also arises here: what is the point of Ericsson pursuing the Brazilian, Colombian and US proceedings, and attempting to exclude Lenovo's products from those commercially important markets, with all the massive attendant effort and expense for both parties? Lenovo argue that, just as in Panasonic v Xiaomi, there can only be one answer to that question: Ericsson wish to coerce Lenovo into accepting terms more favourable to Ericsson than the English courts will determine to be FRAND.'
- After dealing with various other arguments which I need not relate, and explaining at [126] why Ericsson's conduct was not as egregious as that of Panasonic (because Ericsson had neither invoked the jurisdiction of the English Court or given an undertaking to enter into a licence on the terms determined by it) Arnold LJ concluded as follows:
'127. Nevertheless, I accept Lenovo's submission that the core reason for the conclusion reached in Panasonic v Xiaomi is equally applicable here. As I put it at [86]:
"… As discussed above, FRAND is a process and not merely an end-point. Panasonic is not complying with its obligation to negotiate a licence with Xiaomi in good faith, and thereby avoid hold-up, but aiming to coerce Xiaomi into accepting terms more favourable to Panasonic than the Patents Court would determine to be FRAND."
128. In the present case Ericsson is also aiming to coerce Lenovo into accepting terms more favourable to Ericsson than the English courts would determine to be FRAND, or at the very least to avoid the risk that the English courts would determine that FRAND terms are less advantageous to Ericsson than those sought by Ericsson. (Again, for the reasons explained in paragraph 153 below, the same goes for determination by any other court.)
129. In the final analysis, Ericsson's position is that they are simply exercising the legal rights which are available to them in another jurisdiction and this cannot be contrary to their obligation of good faith. I accept the premise of this argument, but I do not accept that the asserted conclusion follows from it for two reasons. The first is that, as explained above, the whole point of a SEP owner's obligation to ETSI is that it is a derogation from the patentee's normal entitlement to enforce its patent by means of an injunction (or equivalent relief such as an LEO or CDO). Secondly, the purpose and effect of an obligation of good faith is to act as a constraint upon a party's ability to enforce its strict legal rights solely with regard to its own interests. Ironically, this is the very reason that English contract law, unlike French contract law, has historically been reluctant to embrace obligations of good faith save in limited circumstances. To put it bluntly, Ericsson's position amounts to saying that they are entitled to use their raw legal power to compel Lenovo to submit. That might well have been a legitimate response to a long period of hold out by Lenovo, but as explained above Lenovo are no longer holding out even if they were previously. On the contrary, Lenovo have now accepted that they must pay Ericsson whatever an independent and impartial court determines to be FRAND plus interest. In those circumstances coercion by Ericsson is no longer justified. Accordingly, Ericsson are in breach of their obligation of good faith.'
- Samsung's case is that the reason why ZTE are seeking injunctive relief against them in various jurisdictions is to coerce Samsung into agreeing to pay supra-FRAND rates.
- The Court has also made clear what it considers an implementer needing a FRAND licence should do. In Panasonic v Xiaomi at [21], Meade J. accepted and endorsed the contention that:
'…Xiaomi has done what it is that the UK court has expressed that an implementer in its position ought to do, which is commit to FRAND terms and move efficiently towards their determination.'
- Samsung say they have done and are doing exactly that.
ZTE's position
- Turning to ZTE's position, ZTE's justification for bringing the various injunctive proceedings was, again, straight out of the playbook. Mr Bloch KC submitted that in so far as Samsung is faced with injunctive relief being granted against it in Germany or elsewhere, it is because under the laws of those countries (laws and courts which we respect) that is the appropriate outcome. He further submitted that there is nothing inherently improper in a party exercising their rights before a respected foreign court in a respected foreign state.
- However, the English court has not accepted the invitation implicit in that submission that it should simply stand by and do nothing. Zacaroli J. observed as follows in Alcatel/Nokia v Amazon [2024] EWHC 1921 (Pat) ([139]-[141] being cited by ZTE in their Skeleton Argument):
'139. Both parties are major commercial concerns. Provided they are acting within their legal rights, they are free to exert whatever commercial pressure they consider appropriate in order to improve their negotiating position. On the other hand, (F)RAND is a process within which a patentee is required to behave consistently with its obligation to grant a licence on (F)RAND terms and an implementer is required to behave consistently with its need to take such a licence: InterDigital Technology Corp v Lenovo Group Ltd [2024] EWCA Civ 743, per Arnold LJ at §39. Faced with an implementer prepared to undertake to enter into a licence on terms which this court (assuming it has jurisdiction to do so) declares to be RAND, it hardly lies in the mouth of a patentee, whose actions in taking enforcement action against the implementer in multiple jurisdictions is at least prima facie in conflict with its RAND obligations, to object to this court taking the view that such enforcement action provides a reason for seeking to resolve the RAND dispute as soon as practicable.
140. That view has been taken in at least two other cases: Panasonic Holdings Corp v Xiaomi Technology UK Ltd [2024] EWHC 1733 (Pat) and Lenovo Group Ltd v Telefonaktiebolaget LM Ericsson [2024] EWHC 1734 (Pat).
141. In my judgment, the continuing and increasing risk of harm by reason of Nokia's campaign of enforcement action in other jurisdictions does demonstrate a sufficient need for urgency to justify a measure of expedition. In the absence, so far, of a mechanism for holding the ring between patentees and implementers pending resolution of the terms of a RAND licence, the only available tool to address the problems that arise prior to that point is to try to ensure speedier resolution of those terms.
142. Miss Davies [Counsel for Amazon] suggested that an order for expedition would in some way be considered a criticism of the courts in other jurisdictions. I do not accept this. Different courts may well take different views as to the maintenance of the appropriate balance between the risk of hold-up (by patentees) and hold-out (by implementers). The purpose of expedition is simply to ensure that the moment at which a licence is in fact implemented – so that it is no longer relevant to maintain any such balance – is reached sooner rather than later.'
- I entirely agree with those observations.
- On the other side of the coin, it is true that Samsung have retaliated by bringing their own claims for injunctive relief. Samsung say they felt compelled to 'return fire' with those claims and the NDCA proceedings. Of course, the Frankfurt proceedings were already in being.
- Just before the hearing before me, the Munich Court appointed a date for the hearing of Samsung's counterclaim of 17 December 2025. In the usual manner, the Court is likely to announce its decision on that day, with reasons to follow, and the risk of injunctive relief against ZTE is likely to arise around the end of January 2026, subject to other factors.
- For that reason, I asked Mr Segan KC whether Samsung was prepared to undertake not to enforce any injunction against ZTE pending judgment in this action.
- In parallel with my request, in the course of Mr Segan's submissions during the morning, Mr Bloch KC intervened to request that he clarify Samsung's position on enforcement. That led to a letter dated 13 March 2025 being sent over the short adjournment setting out Samsung's position, the material parts being as follows:
'If ZTE gives a reciprocal undertaking to the English Court not to seek or enforce any injunctive relief in respect of patent infringement anywhere in the world pending the final UK FRAND determination (i.e., after exhaustion of all appeals), Samsung will give an undertaking to the English Court not to seek or enforce any injunctive relief in respect of patent infringement anywhere in the world pending the final UK FRAND determination.
For the avoidance of doubt, the above proposal relates to injunctive relief for patent infringement in the relevant proceedings and so would not impact the Chongqing, Frankfurt or NDCA proceedings (and is entirely without prejudice to the parties' respective positions in those proceedings).'
- Having taken instructions on my request, Mr Segan KC indicated that Samsung did not consider it could give the undertaking I posited and I entirely understand why. It would tie Samsung's hands whilst leaving ZTE free to enforce.
- I considered whether the price of expedition ought to have been such an undertaking from Samsung, but I concluded not for several reasons:
i) First, because it would create an imbalance.
ii) Second, whether Samsung should or should not enforce an injunction in, say, late January 2026 is, first and foremost, a matter for the Munich Court, which may (according to their practices) take account of whether or not ZTE has or has been allowed to enforce injunctions granted in their favour in earlier hearings.
iii) Third, because Samsung have their application seeking declarations relating to an interim licence.
- It struck me that, in one sense, it would be preferable to decide the interim licence issue first because the decision might obviate the need for an expedited FRAND trial. However, as Mr Segan KC submitted, this jurisdiction is still developing. He also referred to the fact that Ericsson intends to seek permission to appeal to the UK Supreme Court in Lenovo v Ericsson. Overall, therefore, it would be unwise to anticipate what may transpire in the future in this regard.
- Having already written what is set out above, on Monday 17 March 2025, I received a letter from the solicitors for Samsung which indicated that Samsung had considered their position further. They stated as follows:
'1. Samsung's position on injunctive relief is as set out in its letter of 13 March 2025, … Samsung awaits ZTE's response to that letter.
2. If ZTE rejects the proposal set out in the 13 March letter or fails to respond to it by 21 March 2025, Samsung's position is:
a) If Samsung obtains injunctive relief in any parallel patent infringement proceedings, Samsung would not enforce injunctive relief against ZTE in those proceedings pending the UK FRAND Trial subject to paragraph 2(b) below.
b) If ZTE obtains and threatens to enforce (or enforces) any injunctive relief against Samsung in any parallel patent infringement proceedings prior to the UK FRAND Trial that prevents Samsung from continuing to sell products in any jurisdiction, then Samsung reserves the right to enforce any injunctive relief in any parallel patent infringement proceedings against ZTE.'
- Accordingly, whilst I have agreed above that Samsung have done what the English court expects an implementer to do, I do not consider that Samsung's retaliatory proceedings (as a second line of defence) disqualify them from seeking a measure of expedition in this action.
Other issues
- At times during the hearing (and particularly during the submissions made by Mr Bloch KC), an observer would be forgiven for forming the view that I was being asked to decide which set of FRAND proceedings should be allowed to continue or which FRAND decision should 'prevail'. For that reason, I make it clear that the only issue I decided on this application was when to list the FRAND trial in this action and, for that purpose, whether a degree of expedition was warranted.
- As Mr Segan KC observed, a number of the arguments deployed by Mr Bloch KC were redolent of forum conveniens arguments i.e. whether this Court had or should accept jurisdiction over the present claim. For example, Mr Bloch KC spent time considering whether this Court was 'first seised' and the significance of first seizure. However, as Mr Segan KC submitted, ZTE has accepted the jurisdiction of this Court, and what matters is that this Court is seised of this claim. Furthermore, there is no application for a case management stay of this action in favour of the Chongqing Proceedings.
- In a similar vein, Mr Bloch KC sought to make much of the issue of comity. He suggested (a) this Court is not the global FRAND policeman and (b) "For the English Court to treat its approach to FRAND as if it were the only valid approach to FRAND, it would be fairly and reasonably seen by other states as a blatant case of judicial imperialism."
- That second submission is based on a fundamental misunderstanding of what is in issue on this application and in FRAND proceedings in the English court more generally. On this application, this Court is not being asked to specify which set of FRAND proceedings should continue. Furthermore, in this action, the English court is simply going to determine the dispute which the parties have brought before it. It is clear from the decision of the UK Supreme Court in Unwired Planet v Huawei that the reason why the English court accepts jurisdiction to determine global FRAND terms is because that is what the major global businesses in this field agree in practice. However, the exercise of that jurisdiction does not make the English court the 'global FRAND policeman'. Furthermore, the English court does not have the power, nor does it purport to exercise a power to prevent Courts in other jurisdictions from determining global FRAND terms if they have determined they have the jurisdiction to determine such terms, as the Supreme People's Court in China decided in Sharp v Oppo.
- Mr Bloch KC also submitted that if anyone should have the initiative it is ZTE, as the net payee, because of ZTE's offer of a global standstill and an interim licence. Once again, this mixes together a number of issues but is fundamentally based on the same misconception that this Court is being asked to specify which set of proceedings should be allowed to continue. Furthermore, no authority was cited which supports the submission.
- There was also debate over the significance of a party seeking a FRAND determination in their 'home' court or in the court of a neutral jurisdiction. However, Mr Segan KC made it clear that the only point being taken as to the approach in the Chongqing Proceedings was that the Chongqing Court is likely to apply Chinese law to the interpretation of the ETSI undertaking and not French law. As to this, Mr Segan KC relied on the explanation of the significance of this by the Court of Appeal in Nokia v Oppo [2022] EWCA Civ 947. That case involved a dispute as to whether the English court should exercise jurisdiction over the dispute. At [57]-[59] Arnold LJ (with whom Phillips and Peter Jackson LJJ agreed) said this:
'57 In the present case it was common ground between the experts who gave evidence as to Chinese law before the judge that the Chongqing court will apply Chinese law when determining the terms of a global FRAND licence. Indeed, the Guangdong Higher People's Court expressly rejected an argument that the Shenzhen first instance court should have applied French law in Huawei Technology Co Ltd v InterDigital Communications Inc (2013) Yue Gao Fa Min San Zhong Zi No.305. Moreover, Ms Liao questioned why French law or the ETSI obligation were relevant to calculation of the applicable royalty rate at all.
58 The significance of this point is that, while the Supreme Court rejected a "hard-edged" approach to non-discrimination in Unwired Planet, it is common ground that that is the approach that has been adopted by the Chinese courts to date in cases involving PRC-only licences. Although there is no precedent in which a Chinese court has addressed this issue in a case involving a global licence, there is no evidence that this is likely to make a difference. As a result, Henry Carr J found in Conversant at [62(i)] and [63] that proceedings in China "would result in a lower rate for the entire portfolio than would be granted in other parts of the world". This is of particular concern for Nokia in circumstances where Oppo may seek to point to the 2018 licence as the appropriate comparator when adopting a hard-edged approach.
59 As Meade J observed in Optis Cellular Technology LLC v Apple Retail UK Ltd [2021] EWHC 2564 (Pat) at [187], "[t]he decision by an implementer to accept or reject the UK Court's FRAND rate is driven not by whether the FRAND rate is truly FRAND but only by whether it matches the implementer's expectations of what it might get from another Court in another jurisdiction." For the reason explained above, if the Chongqing court is found to be the appropriate forum, it is likely that that court will apply a different law and a different approach to FRAND to the English court, probably resulting in lower licence fees payable by OPPO. Nokia argue that this is a compelling reason why the English court is the appropriate forum for the trial of this dispute.'
- Although Mr Bloch KC objected on the basis that the point should have been developed in evidence, the evidence on this application was overly complex as it is and I see nothing wrong in adopting relevant and clear propositions regarding foreign law established in earlier cases.
- However, once again, it is a matter for the Chongqing Court to decide on its approach to the determination of global or national FRAND terms, and not this Court.
- With that overlong introduction, I can turn to the application.
Applicable principles
Applications to list a trial in the Patents Court
- It will be apparent that this application does not fit into any of the three categories I set out in Nokia v OnePlus [2021] EWHC 2746 at [4], a passage cited by Meade J in Pfizer v Amgen [2022] EWHC 2296 (Pat), both cases in which we were attempting to give guidance – see also the revised Practice Statement: Listing of Cases for trial in the Patents Court, issued 7 February 2022. Nonetheless, it will be apparent from the fact that I granted Samsung expedition (albeit not to the extent they sought), that it was appropriate for Samsung to make this application.
Expedition
- The applicable principles were not in dispute. They are set out in WL Gore v Geox [2008] EWCA Civ 622 at [25] per Lord Neuberger. There are four factors to be taken into account:
i) whether there is good reason for the expedition;
ii) whether expedition would interfere with the good administration of justice;
iii) whether expedition would cause prejudice to the Defendant; and
iv) whether there are any other special factors.
- Samsung also submitted that when applying that test, there is considerable recent precedent for expediting the FRAND trial in SEP cases with similar essential fact patterns to the present dispute. Although the facts and circumstances in those (and any other) cases were different, so that they provide limited assistance, both sides placed reliance on the four cases, so I will briefly set them out, using Samsung's description of them:
i) Panasonic v Xiaomi and OPPO [2023] EWHC 2872 (Pat): The Court (Meade J) listed an expedited FRAND trial of 10-15 days (which was ultimately scheduled to take 12.5-13.5 days), before FRAND Statements of Case ("FRAND SoCs") had been exchanged and before the first CMC, in view of Panasonic's campaign of litigation in other jurisdictions, the threat it posed to Xiaomi's business and the desirability of arriving at FRAND terms as soon as possible.
ii) Lenovo v Ericsson [2024] RPC 19 ¶¶119-123 and [2024] EWHC 1734 (Pat) ¶¶46-59: The Court (Richards J) listed an expedited FRAND trial of 13-15 sitting days, before FRAND SoCs had been exchanged, for similar reasons.
iii) Alcatel/Nokia v Amazon [2024] RPC 26 ¶¶132-157: The Court (Zacaroli J, as he then was) listed an expedited FRAND trial of 20 days, before FRAND SoCs had been exchanged and before the first CMC, for similar reasons. Zacaroli J also appreciated that the time estimate should be refined once the scope of Amazon's case and the terms of the claimed RAND licence were better defined as the case progressed (¶157).
iv) Lenovo v InterDigital [2024] EWHC 1922 (Pat): The Court (Zacaroli J) listed an expedited FRAND trial of 20 days, before FRAND SoCs had been exchanged and before the first CMC, for similar reasons. Again, Zacaroli J recognised that the time estimate should be revisited as the case progressed (¶¶10, 39-40).
- As Samsung also observed, the first two of these cases are ones in which the Court of Appeal subsequently granted interim licence declarations to Xiaomi and Lenovo (see [2024] EWCA Civ 1143 and [2025] EWCA 182). In the third, the Court of Appeal permitted amendments enabling Amazon to seek interim licence declarations (see [2025] EWCA 43) and an interim licence trial is due to take place in April-May 2025. (In the fourth, Lenovo sought an interim licence and was refused ([2024] EWHC 596 (Ch), but that was before Panasonic v Xiaomi and was not appealed.)
- For their part, ZTE analysed each of those four cases in terms of (a) the time between commencement to the order for expedition and (b) the time from that order until trial, as sought and as granted and sought to compare those with this case. Those periods were, in each case:
i) Panasonic v Xiaomi & Oppo: (a) 3 months; (b) 12 months granted, 8 months rejected.
ii) Lenovo v Interdigital: (a) 10 months; (b) 11 months granted.
iii) Lenovo v Ericsson: (a) 8 months; 10 months granted, 9 months rejected.
iv) Amazon v Nokia: (a) 9 months; (b) 15 months granted, 12 months rejected.
v) This case: (a) 3 months; (b) ZTE proposes 12 months (March/April 2026), Samsung proposes 8 months (24 November 2024), the intermediate listing of 12 January 2026 would be 10 months.
- The purpose of ZTE's analysis was to demonstrate that the expedition sought by Samsung would represent the shortest time between the hearing of the application for expedition and the FRAND trial, that 8 months had been rejected and 12 months was plainly more suitable.
Decision
- Overall, despite the complexity of the evidence and of some of the arguments, the situation appeared to me to be relatively straightforward.
Factor 1: Good reason for expedition
- Samsung submitted there were good, indeed compelling, reasons for expedition. Naturally, Samsung's arguments were directed at a trial in December 2025, but with January 2026 as the alternative. They summarised those reasons as follows:
i) the prospect of highly damaging injunctions being granted against Samsung if a FRAND licence is not determined and concluded as soon as possible.
ii) the desirability of bringing the wasteful infringement and other related litigation between the parties to an end as soon as possible.
- As Samsung pointed out those reasons were accepted as good reasons for expedition in each of the four cases summarised above. Although each case must turn on its own facts, on the facts of this case, I agree that both represent good reasons for expedition.
- Samsung also cited a third reason which was summarised as a need to protect the integrity of these English proceedings. Mr Bloch KC was scornful of this, contending (a) there is no threat to the integrity of the English Court and (b) the English Court is not the global policeman. However, I think he misunderstood Mr Segan's point. Mr Segan submitted there is a real need to protect the integrity of these proceedings against ZTE's intention to drive Samsung into having to abandon them, also submitting that ZTE's evidence showed this was exactly their intention. Although the pressure from ZTE stems or will stem from the injunctive proceedings they have brought, I agree that this would be a further manifestation of damage to Samsung (separate from the first reason) and likely to be irreparable. Accordingly, I agree this is a further good reason for expedition.
Factor 2: Whether expedition would interfere with the good administration of justice
- Samsung referred to Rangers Football Club Plc (in administration) v Collyer Bristow LLP and others [2012] EWHC 1427 (Ch), where Arnold J (as he then was) observed at [29] that:
"[g]ood administration of justice involves really two aspects. The first is consideration of the interests of the various parties before me, and the efficient disposal of their various competing claims. The second aspect involves those parties who are not before the court, that is to say other litigants who would be prejudiced if these claims are given expedited treatment in preference to theirs."
- As between the parties before the Court, expedition is plainly in the interests of the good administration of justice. The parties are currently involved in a hugely expensive volley of global patent infringement proceedings, when the real solution to the parties' dispute lies in an adjudication of FRAND licensing terms.
- However, I must also consider the position of other litigants and, indeed, the Court. Contrary to the position relied on by Samsung, the information I received about the lists in December 2025 is that they are very congested. In short, there is no slot available for a FRAND trial of 10-15 sitting days in November/December 2025. To accommodate such a trial, one or more hearings would have to be ejected from the list. So, the expedition sought by Samsung would interfere with the good administration of justice.
- Although Samsung submitted that any prejudice to others would be outweighed by the "strong interest of Samsung in protecting itself from the regrettable campaign commenced by ZTE and in resolving the key commercial dispute between them as quickly as reasonably possible", I disagree.
- The position as regards the trial starting in January 2026 is different and it can be accommodated. Expedition to January 2026 may result in some interference with the good administration of justice if this case requires multiple and extensive case management hearings to reach that trial, but it ought to be possible for the Court to control that (not least to keep control of costs), so that the interference is slight.
Factor 3: Whether expedition would cause prejudice to the parties
- In this case, this factor requires scrutiny of the likely steps required to get to the FRAND trial and the likely directions, albeit those will be set at the CMC shortly.
- Each side put forward a set of possible directions down to a trial window commencing on 24 November 2025, only 8 ½ months hence. For that reason, there were steps in each timetable which were unduly compressed. As ZTE submitted, the time to such a trial would be shorter than that available in any of the four cases which were debated in the evidence and submissions.
- However, an interesting point emerged from the evidence which indicated that both sides contemplated that the trial estimate might well be revised down to 10 sitting days.
- It seems to have been become routine for some time now to list any FRAND trial for 10-15 sitting days, but there is no automatic rule to that effect. Each case is different but as we gain experience in case managing FRAND litigation and conducting FRAND trials, there is no reason why a FRAND trial should be assumed to require 10-15 days in Court. Parties must expect to have to streamline their cases appropriately in line with their duties under the overriding objective. In order to gauge what is proportionate naturally the Court requires information as to what is at stake in the proceedings. In terms of money, I have indications of the likely net payment (translated into per annum sums) from the confidential offers made by each side as to the terms for an interim licence pending either a FRAND determination or agreement, and it is true that substantial sums are at stake.
- In the evidence, the parties debated the issues which are likely to require determination at the FRAND trial. There seemed to be agreement that both sides will rely on comparables, with ZTE indicating they would be putting forward reasons why the recently expired cross-licence is not comparable. Mention was also made of a top-down analysis, but no further detail was provided. Samsung made the point that there is no long tail of unlicensed devices in this case (as in Interdigital v Lenovo), so the analysis and issues are likely to be simpler. Samsung also contended that ZTE will have licences with other entities which are likely to be relevant.
- Samsung pointed out that each side is a very substantial business and well resourced, a point also evidenced by the number of other proceedings each one has commenced. Samsung's point was that their respective resources would be much better expended on resolving the underlying dispute which is how much money should be paid for the FRAND cross-licence. I am inclined to agree. Furthermore, each side in this action has solicitors and counsel experienced in this area.
- Although getting ready for a trial commencing on 24 November 2025 would have been tough, I consider the respective teams would have been able to do so, if required. I consider there would have been little risk of injustice in that scenario. So, if that trial slot had been available, I would have been inclined to grant expedition to that degree.
- However, because there is no slot available in December 2025, the task for the parties is less onerous to get ready for a trial commencing as from 12 January 2026, and I am satisfied the risk of injustice is therefore slight. Although there was discussion at the hearing of the rival possible timetables, I left the actual directions to the parties to discuss (and hopefully agree) in advance of the CMC, on the basis that I was satisfied both parties will be able to be ready for the FRAND trial commencing in January 2026.
Factor 4: Whether there are any other special factors
- Samsung submitted that ZTE's conduct is a significant and special factor in favour of proceeding to list the FRAND trial as soon as possible, pointing out that this has been recognised in Panasonic v Xiaomi at [29] and Alcatel v Amazon at [151].
- Samsung also relied on the need, to protect the English court's procedure leading to a FRAND trial: Panasonic v Xiaomi at [29], but I have already taken this into account under Factor 1.
Conclusion
- Stepping back from the detail, I concluded that the factors I have summarised pointed clearly in favour of a trial listing commencing in January 2026, and I so ordered.
