UK interim license declarations are useless as Munich court threatens injunctions against pressure on SEP holders

Context: UK case law on standard-essential patents (SEPs) has recently gone off the deep end  (July 7, 2025 ip fray article). Some judges of the England & Wales Court of Appeal (EWCA) and the High Court of Justice for England & Wales (EWHC) have radicalized themselves, trying to make the UK the world’s exclusive arbiter on FRAND (fair, reasonable and non-discriminatory licensing) rates and procedures.

What’s new: In ZTE v. Samsung, the Landgericht München I (Munich I Regional Court) issued a written FRAND guidance dated July 14, 2025 and has now produced a public redacted version that we will publish, and discuss further, in our next article. The most important item that we wanted to highlight immediately in this article is that the document announces injunctive measures against any implementer trying to exert pressure on a SEP holder to actually grant an interim license that a UK court deems it entitled to. The same apparently applies if the courts in the UK were to take such measures: the implementer would then face severe sanctions in Germany.

Direct impact: For the case at hand, it means that Samsung’s brute-force FRAND strategy (March 3, 2025 ip fray article) has already failed. ZTE is winning:

The interim license declaration Samsung won in the UK (June 25, 2025 ip fray article), based on a double-standards rationale that no self-respecting appeals court could affirm, is going to remain a waste of time and money. Any attempt by Samsung to force ZTE to grant an actual interim license based on that declaration would backfire badly in Munich. The warning couldn’t be much clearer.

It’s also clear that the Munich court is not going to stay its proceedings over Samsung’s Frankfurt antitrust lawsuit (February 13, 2025 ip fray article). The FRAND guidance doesn’t even dignify it with more than the succinct note that it is entirely in the Munich court’s discretion whether to order a stay. Quite apparently, the court is disinclined to do so.

Samsung’s U.S. case against ZTE (filed in the Northern District of California) is on life support and not unlikely to be thrown out early (July 9, 2025 ip fray article).

Wider ramifications:

For global SEP litigation:

Some parties may still seek UK interim licenses, but any implementer contemplating that litigation tactic must think hard about whether that course of action is advisable. SEP holders routinely sue in Munich, and the Munich I Regional Court would apply its well-established and demonstrably effective anti-antisuit injunction (AASI) principles to a situation in which someone tries to abuse a UK interim license declaration. The written guidance makes it clear that (in other words) as long as UK judges content themselves with just wasting everyone’s time and money on purely academic declarations, they are free to do so, but the Munich I Regional Court draws the lines where implementers use such courts to interfere with foreign proceedings. An interim license, if actually granted, has the potential to terminate foreign infringement litigation and/or the enforcement of SEP injunctions. The Munich court won’t condone that, and implementers would have to take major risks in ignoring this guidance.

For UK and other foreign rate-setting proceedings:

The guidance document voices the clear expectation that a party seeking a rate determination in a foreign country must start to make actual payments (not just deposits) based on at least the amount it proposes as a FRAND rate in the foreign jurisdiction. That would fix a flaw of the EWCA’s economically untenable, highly illogical view that interim payments are commercially equivalent to actual payments.

For the UK’s legislative initative on SEPs:

Not only the UK courts have now officially lost but the UK Intellectual Property Office (IPO) can also forget about its contemplated rate-setting initiative (July 15, 2025 ip fray article). Either that initiative will also result in something non-binding or purely voluntary — which the world doesn’t need because there already are plenty of options in the world, including but not limited to WIPO’s dispute resolution offering and soon also the Unified Patent Court’s (UPC) Patent Mediation and Arbitration Centre (PMAC) — or it will conflict with the Munich I Regional Court’s FRAND guidance. The withdrawn EU SEP Regulation would have been binding on German courts, but UK legislation is not. Therefore, the UK is never going to become the world’s FRAND forum.

For the UPC:

The UPC’s Munich and Mannheim Local Divisions (LDs) have recently dealt with U.S. antisuit injunction requests in way consistent with that of the Munich I Regional Court. Presumably the UPC, too, would thwart any attempts to abuse UK judicial imperialism to gain a tactical advantage in licensing disputes.