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| 1 minute read

FRAND disputes have no natural forum, so why not England!

In the article linked below, my colleague Sophie Lawrance and I explain the recent decision in the Court of Appeal in Nokia v Oppo. Oppo had raised a jurisdiction challenge on the basis of forum conveniens principles, which the High Court had dismissed alongside Oppo's request for a stay in favour of proceedings in the People's Republic of China (specifically Chongqing). 

The "meat and potatoes" of the Court of Appeal's decision was that it upheld the High Court's order. The claim was characterised correctly as concerning infringement of UK patents (SEPs), none of the developments since the UK Supreme Court had considered these issues in Unwired Planet and Conversant made a difference to that assessment, and England was clearly the appropriate forum.
The Court of Appeal also agreed with the High Court's decision to decline a stay, noting that if anything they'd have been even more pro declining the stay.

However, the interesting part is the Court of Appeal's detailed consideration of the position were it to have concluded Oppo's characterisation of the claim as a global FRAND dispute was correct. The Court gave little weight to the PRC-connecting factors raised by Oppo, including the question of applicable law noting that a legitimate juridical or personal advantage was not a factor when considering appropriate forum. Instead, the Court noted that any competent national court or supranational arbitral tribunal could determine a global FRAND dispute, and therefore it had no real connection with any territory. 

The Court concluded that England was clearly an appropriate forum given Nokia was enforcing UK SEPs, but at best (i.e. if one considered it as a global FRAND dispute) Chongqing was no more appropriate a forum than England. England therefore remains very much open to consider global FRAND issues insofar as they concern UK patents.

If you'd rather read the short summary of the judgment, check out our FRAND tracker here.

While the ultimate outcome of the case is that the English Courts consider that there is no particular “natural” forum for a FRAND dispute, it remains clear that where UK SEPs are in issue, England remains an available forum for resolving the overall dispute between the parties, regardless of what other proceedings are on foot.


sep frand disputes, technology