Irides: Weekly global patent litigation update

This edition features updates from: The UK and the Unified Patent Court (UPC).

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world.

UK STOP PRESS

High Court hands down FRAND judgment in Samsung v ZTE [2026] EWHC 999 (Pat)

The High Court has today handed down its judgment in Samsung v ZTE, determining the FRAND terms of a global cross-licence between the parties. This is the first cross-licence FRAND determination to reach judgment in the UK.

The decision provides detailed guidance on determining FRAND terms using the comparable licences method, particularly in identifying what the Court called “good comparables” and what adjustments should be made to account for any non-FRAND factors which may have affected those licences.

Key points from the decision

• The Court set a FRAND lump sum of $392 million for the licence. This was a cross-licence, so is the balancing payment in favour of ZTE.

• The Court determined the FRAND rate using the comparable licences method, rejecting the top-down cross-check put forward by ZTE on the basis that, on the facts of this case, it was excessively sensitive to its underlying assumptions.

• The Court held that ZTE’s own licences with Apple and Samsung, described in the judgment as the “Big Two”, were the best starting point for determining a FRAND rate, but found both were severely affected by non-FRAND factors.

• The Court held that the presence of non-FRAND factors did not disqualify those licences as comparables, and that such factors could instead be addressed through appropriate adjustments.

• The Court ultimately relied only on one of the Big Two, ZTE’s licence with Apple, finding that it gave rise to less difficulty when unpacking. It preferred using a single best comparable as a starting point, rather than combining a good comparable with a less good one, which it considered impractical and contrary to case law such as the guidance in Cimetidine.

• The Court made what it accepted were not “surgical” adjustments to account for non-FRAND factors, including treating the Apple lump sum as 21% higher to reflect a 12.5% first licence discount and a 5% discount given that ZTE had not achieved full value for 5G. The Court also assumed that past sales had been discounted by 80% to reflect the impact of sanctions and ZTE’s need for rapid cash.

• Consistent with previous FRAND decisions in the UK, the Court found that interest on all past sales must be paid, in this case, at a rate of 5%.

The “Big Two” licences and non-FRAND factors

The non-FRAND factors identified in the judgment included:

• ZTE’s constrained negotiating position following US sanctions

• Its experience in out-licensing at the time of the negotiation

• A marked imbalance in bargaining strength against highly experienced counterparties.

The Court also considered that ZTE was in a position in which it would have been perceived as having only low willingness and/or ability to litigate its patents by infringement proceedings, whereas Samsung and Apple were much better placed to defend any such claims.

The Court did not find that this amounted to “hold-out” by either Samsung or Apple. However, it did find that, as a result of these factors, ZTE realised only a low price in each of the Big Two and that ZTE is entitled now to insist on full FRAND value in the licence determined by the Court.

Preference for the ZTE-Apple licence

The Court based its determination on the ZTE licence with Apple, which it preferred given that it gave rise to less difficulty when unpacking. This is because the fact that it was an agreement with a different licensee could be satisfactorily allowed for and:

• It was less affected by non-FRAND factors, so required less adjustment, and less subjective adjustment

• It did not have the complication of being a partial licence of 5G.

The Court found that using both of the Big Two would amount to combining a good comparable with a less good one, which would be impractical and contrary to the guidance established in Cimetidine and reiterated in later case law.

Adjustments applied by the Court

The Court assessed the adjustments to be made in a way that it accepted was not “surgical”, finding that:

• ZTE had effectively given Apple a reduction of 12.5% (one eighth) because it was concluding its first out-licence

• ZTE had given another reduction of 5% because, given the facts established in this case, ZTE achieved a somewhat depressed amount for its 5G portfolio

The combined effect of these is that the lump sum paid should notionally be treated as 21% higher.

The Court also found that the general pressure on ZTE from the US sanctions and the associated need for rapid cash was severe and was best reflected, as a past sales discount of 80% notionally having been given, on top of the first licence discount and 5G reduction.

Rejection of other comparables

A central dispute in this case concerned the appropriate comparables. The Court noted that it should look at the whole situation in the round and that, had there been major problems with using the Big Two or the ZTE-Apple licence, it would have been open to taking a more lenient view of other licences. However, in this case, it rejected the other licences for the reasons set out below. 

• The Samsung licences with Ericsson, Nokia and InterDigital that ZTE’s valuation case relied on were unusable due to the portfolios of those three counterparties being “so different” from ZTE’s portfolio; the considerations mentioned by the Court included the counterparties’ great expertise at out-licensing and, particularly, their willingness and ability to litigate, which indicated significant non-FRAND elements in the outcomes.

• The four other Samsung licences with NEC, Docomo, Datang and Sharp, as well as the Samsung licence with Huawei which both parties rather “tentatively” identified as potentially offering a middle ground, did not provide a reliable basis to proceed. The Court found that these licences were too internally inconsistent and divergent from other licence sets for it to be possible to identify a FRAND pattern or standard or “going rate” on which the Court could rely.

• Three of ZTE’s own licences with Vivo, Oppo and Xiaomi were not contended for by either party, and the Court agreed that they were not useful on the basis that they could not reliably be unpacked, whether or not they were comparable.

This decision shows that the Court is willing to consider and grapple with non-FRAND factors affecting comparable licences, and to reflect those factors through appropriate adjustments rather than excluding such licences altogether. It also demonstrates that the Court is open to using either a single licence or a set of licences as the basis for its determination, depending on which provides the most reliable foundation in the circumstances.

Notably, in this case Samsung has undertaken to enter into the licence determined by the Court but ZTE has not (since otherwise it would effectively have been abandoning the Chongqing proceedings). It therefore remains to be seen how the parties will respond to this judgment in the context of their wider global dispute.
 

UPC

UPC clarifies territorial scope of remedies where a Member State is carved out.
[UPC_CFI_106/2025]

On 23 April 2026, the Dusseldorf Local Chamber held that a patent owned by Quantificare was valid and infringed by US company Canfield Scientific through its EU subsidiaries. Quantificare’s patent related to stereophotogrammetry devices and methods using predefined capture distances for different image formats (e.g. face and body imaging). In addition to considering in detail the technical infringement and validity of the patent, the Court gave important guidance concerning the territorial scope of relief in respect of a basket of European Patents where on EP territory has been ‘carved out’ to avoid conflict with parallel national proceedings.

Earlier German national proceedings had concluded that infringing acts had taken place in Germany. Quanitificare relied upon those acts notwithstanding that its UPC action ‘carved out’ any relief in respect of Germany itself. The Court confirmed that establishing an infringing act in a single Contracting Member State is sufficient to justify injunctive relief covering all Member States where the patent is in force, even where the claimant has procedurally carved out that state from the infringement action and granted multi‑territorial relief covering Belgium, France, Italy and the Netherlands on the basis of the German acts.

The decision confirms the broad interpretation of Art. 34 UPCA previously adopted by the Munich Local Division (LD) but is in contrast to the narrower approach taken by the Paris LD in Seoul Viosys decision where it considered relief should only be granted for territories where the patentee had shown that acts of infringement were taking place.

It will, therefore, be interesting to see what the Court of Appeal (CoA) will make of those contrasting positions as and when a suitable case arrives at its door.

UPC

The Hague Local Division dismisses Stratasys Preliminary Injunction application following narrow claim construction on purge towers.
[UPC-CFI-305/2026]

On 24 April 2026, The Hague LD handed down an order in respect of an application for provisional measures by Stratasys against BambuLab. The dispute concerned BambuLab’s 3D printer (referred to as H2C), which was launched at a trade fair in Frankfurt in November 2025. Announcements about H2C had been made in other territories, e.g. the US, in August 2025. Following these announcements, Stratasys conducted a test purchase of the H2C printer, which was received in December 2025. Testing was undertaken by Stratasys and completed by late January 2026. The application for provisional measures was filed seven days later, alleging indirect infringement of EP 2 964 450 (the Patent).

In December 2025 (i.e. prior to the filing of the application for provisional measures), BambuLab started revocation proceedings against the Patent in the Paris Central Division.

The Patent relates to a method for extrusion-based additive printing of 3D parts using multiple print heads, focusing on how purge operations are handled during such printing. Claim 1 was construed such that a purge tower (i.e. a ‘tower’ of material built up of successive layers of purged material) was deemed to completely replace the conventional purge station, allowing for fully automated printing. In support of this construction the LD cited the patentee’s submissions during prosecution of the Patent. In particular, Stratasys had added the phrase “in a layer by layer manner” to the claims, which BambuLab successfully argued would be understood to refer to the creation of a new horizontal layer with each purge operation, consisting of only one type of material. The Bambulab device distributed purged material at different places in the same plane rather than stacking it.

While the LD was not convinced by Bambulab’s argument that the H2C printer could not infringe because it was “priming” and not “purging”, the narrow construction arising from submissions made by the patentee during prosecution meant that the LD deemed it more likely than not that the Patent would not be infringed by H2C as it did not reproduce the layer by layer printing of a purge tower whereby each layer consists of one type of material.

As this defence was sufficient for the LD to reject the application for provisional measures, no other arguments were addressed. However, the LD indicated that if needed it would have considered that in the circumstances the application was filed without unreasonable delay. The parties agreed that Stratasys would pay BambuLab €112,000 in costs after the LD indicated that the value of the dispute would be set at €1 million.
 

UPC

Munich Local Division confirms that FRAND security cannot be relied on to resist security for costs.
[UPC_CFI_617/2025]

On 23 April 2026, the Munich LD dismissed an application by Advanced Standard Communication LLC (ASC) for panel review of the Judge-Rapporteur’s Order requiring it to provide €300,000 security for costs in its infringement action against Xiaomi concerning an SEP. Xiaomi had sought security on the basis that ASC appeared to have no valuable assets, no apparent financial reserves, no revenue stream, and no physical office space, and appeared to be a “simple shell company”, such that any costs order might not be recoverable.

ASC resisted the application on three main grounds. First, it said that Xiaomi had failed to prove that its financial position was weak, pointing in particular to its patent portfolio, which it said was a valuable asset. Second, it argued that Xiaomi’s own FRAND security – a bank guarantee provided in connection with Xiaomi’s compulsory licence / FRAND defence – was itself an asset available to satisfy any costs order. Third, it relied on the possibility of ATE insurance, noting that it was in the process of obtaining such insurance following the CoA’s recent confirmation in Syntorr v Arthrex (previously reported here) that ATE insurance may, in principle, obviate the need for security in the form of a cash deposit or bank guarantee.

The Judge-Rapporteur was not persuaded and found that ASC’s financial position gave rise to a real and legitimate concern that any costs order might not be recoverable. The patent portfolio was not shown to have concrete value. The FRAND security was not an asset of ASC as it had been provided as security for potential licence payment obligations towards ASC and to avoid an injunction claim asserted by ASC. It therefore could not be treated as a general fund against which Xiaomi could recover costs. As for ATE insurance, none was yet in place, and ASC had not shown that such cover would in any event be sufficient.

On review, the panel upheld the Judge-Rapporteur’s order, re-affirming the CoA set principle that once a defendant presents credible reasons for concern the burden shifts to the claimant to show why in fact no security is necessary. The LD confirmed that in the present case the FRAND security did not relieve ASC of the separate obligation to provide security for costs. FRAND security was not an asset available to ASC, nor something against which Xiaomi could set off a costs claim. The panel also agreed that ASC’s financial position was weak, it had no proven business activity beyond holding and asserting patents, no shown revenue, and no demonstrated assets beyond an unvalued patent portfolio. ATE insurance did not assist either given that ASC had not actually obtained one. The panel further confirmed that even where ATE insurance exists, the court must assess its terms on a case-by-case basis.

New episodes: You, Me and the UPC: Case by case

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Episode 52: Paris Local Division revokes Michelin patent following novelty challenge based on single prior art document