Nokia v Oneplus [2023] EWHC 1912 (Pat)

26 July 2023

Andrew Lykiardopoulos KC (together with Kassie Smith KC and Ravi Mehta) represented the Defendants “Oppo” and Thomas Jones (led by Sarah Ford KC) represented the Claimants “Nokia” in a trial to determine the approach to FRAND licensing following a finding of infringement of a valid Standard Essential Patent in the UK,  where there are corresponding proceedings ongoing in another jurisdiction also assessing a FRAND licence.

Oppo was found to infringe a UK SEP owned by Nokia.  Oppo had offered undertakings to take a global licence on FRAND terms to be set by the First Intermediate People’s Court of Chongqing in the PRC. Oppo argued that the effect of this undertaking was that it was either already licensed under the ETSI IPR Policy or it was a beneficiary under the said Policy and not liable to be injuncted in the UK. Oppo also contended that in the circumstances of the case, Nokia’s conduct in seeking injunctive relief was an abuse of Nokia’s dominant position.

Meade J held that Oppo was not already licensed under French law and that Nokia was able to insist on the global licence being settled in the UK without abusing a dominant position.  Pending the terms of that licence being determined in the UK, Oppo was required to undertake to commit to the global FRAND licence being determined by the English Court or be subjected to a FRAND injunction in the UK, unless and until it would commit.   Oppo elected not to so commit and so was subject to a FRAND injunction, which was then stayed pending an appeal.   The Judge gave permission for a “leapfrog” application to appeal to the UK Supreme Court to consider the issues.

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