On 26 August 2020, the UK Supreme Court (the ‘Supreme Court’) gave its judgment1 in the appeals of two judgments of the Court of Appeal of England and Wales (the ‘Court of Appeal’) in Unwired Planet v Huawei2 and Conversant v Huawei & ZTE3. The Supreme Court unanimously dismissed both appeals in their entirety and endorsed the rulings of the lower courts on several key legal issues surrounding fair, reasonable, and non-discriminatory (FRAND) licensing of standardised technology, including the application of European competition law. This article will set out the background to the proceedings, summarise the key findings of the Supreme Court, and comment on the continuing importance of competition law in FRAND litigation.

 
Key Points
  • The UK Supreme Court upheld the decision of the Court of Appeal in both Unwired Planet v Huawei and Conversant v Huawei & ZTE.

  • The Supreme Court confirmed that English courts have jurisdiction to set the terms of a global fair, reasonable, and non-discriminatory (FRAND) licence and grant an injunction preventing further infringement of UK standard essential patents if an implementer does not accept those terms.

  • The Supreme Court also confirmed that the ‘non-discrimination’ limb of the FRAND obligation does not prevent SEP holders from offering lower rates to some licensees and that failure to follow the negotiation framework established in Huawei v ZTE will not automatically result in an abuse of dominance finding.

  • The Supreme Court’s findings mean that the English courts remain a favourable jurisdiction to resolve global FRAND disputes, although it remains to be seen whether other courts will be similarly willing to settle global terms.