Irides: Weekly global patent litigation update

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

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

UK

Patents Court determines interim RAND payments to be made by Warner Bros Discovery and Paramount in streaming licences dispute.
[Warner Bros. & Paramount v Nokia [2026] EWHC 1505 (Pat)]

In Warner Bros. Discovery and Paramount v Nokia, Mr Justice Meade (Meade J) determined the confidential interim payments to be made by Warner Bros Discovery (WBD) and Paramount pending a November 2026 trial at which the English Court will determine the terms of a final global RAND licence for Nokia’s Video Portfolio. The Court’s determination of this interim payment arose after the parties agreed that the English Court should determine the terms of both interim and final global licences and consequently to withdraw all parallel litigation in the English Courts and other fora. Both parties agreed that Paramount and WBD should each make a non-refundable payment to Nokia. However, the parties disagreed on the requirement for, and amount of, an adjustable interim payment.

Meade J ultimately determined that an adjustable interim payment was necessary. He disagreed with Paramount and WBD’s contention that Nokia would have no real use for the money given that it could not be recognised as revenue in its accounts. Following the Court of Appeal in Ericsson v Lenovo, the judge considered that the money may yet be of use to Nokia, as an interest-bearing asset or as an offset against some debt. However, the key point was that the Court is trying to reflect an interim agreement that willing parties would make. In such a situation, an implementer who had already been using patented technology and was going to continue to use it should pay an amount reflective of the range of possible outcomes.

Having decided that an award of an adjustable interim payment was appropriate, Meade J went on to consider the methods for determining an appropriate level of payment put forward by the parties. This involved in part determining the appropriate licensing reference points and in part determining how far back the interim payment should cover.

Turning then to the method, Meade J referred to his judgment in TP-Link v Huawei in which he stated that (F)RAND interim payments should be assessed without a mini trial. Rather, a position should be reached which fairly accounts for the possible outcomes of trial without delving into too much detail. In coming to his decision Meade J noted that the simple mid-point approach advocated in other cases was not appropriate in this case.

This case was unusual in that the valuation methods used by the parties were materially different, resulting in highly divergent proposed payment amounts. Paramount’s and WBC’s primary position was that the interim value should be determined based on the rates charged by the standards pools. Alternatively, Paramount and WBC argued that the rate should be set by reference to a further confidential agreement, or a lump sum offering made by Nokia to Paramount in 2024 (NLSO). Nokia’s position was that the interim payment should be based on comparable agreements it had made with other implementers. The amount calculated using these comparables was three orders of magnitude higher than using Paramount’s and WBD’s pool-scaling approach. Meade J also pointed out that the mid-point method most appropriate in situations where the parties were beginning to converge on an agreed amount, but again, that was not the case here.

Ultimately the judge decided on a modified mid-point approach. In doing so, he gave very significant weight to the NLSO. This was because he felt that the NLSO was relatively simple, was an actual offer made by Nokia to one of the parties in the case, and related to substantially the same portfolio as that in issue in the proceedings. However, the comparable agreements put forward by Nokia were not entirely ignored. Although NLSO was used as the principal reference point, the resulting figure was adjusted upward to reflect the possibility that Nokia could obtain a materially higher result if its comparable licence evidence is accepted at trial.

As to the time period over which the interim payment should be calculated, Nokia argued it is entitled to payment back to 2011 (when Paramount and WBD started using this technology). Paramount and WBD argued that Nokia did not make it clear for years that it would require royalties for streaming activities, instead of simply relying on royalties for devices. It also suggested that Nokia had in the past not explicitly recovered for all sales. Meade J felt that this was not evidence of an industry practice, which is the level he had required in TP-Link when considering whether past sales should be taken into account. However, although he held some doubt as to whether Nokia were entitled to recover all the way back to 2011, he did not make a determination as to how far back recovery could go. He did accept that past sales should be covered in some form, with compound interest being reflected in the ultimate value, but left the final timeframe determination for trial. This doubt about the time period for recovery is reflected in the redacted refundable amounts. 

The decision therefore leaves the principal issues for the November trial. Those issues include the correct valuation methodology, the weight to be given to bilateral comparables as against pool-based analysis, and the temporal scope of any recovery for past use. It does however confirm that the Court will not conduct a mini-trial when determining an interim (F)RAND rate, and will not apply a strict mathematical approach to the valuation, instead reserving the main issues for trial.
 

UPC

Court of Appeal provides key jurisdictional guidance on multi‑defendant infringement actions.
[Bosch v Valeo UPC-CoA-50/2026 & Valeo v Bosch UPC-CoA-4/2026 et al.]

Two Court of Appeal (CoA) orders issued on 22 June 2026 address related aspects of internal UPC jurisdiction in multi-defendant infringement actions.

In Valeo v Bosch, the Court considered the position where one or more defendants were established outside the territory of the Contracting Member States, here Serbia and China, and clarified the relationship between art. 33(1)(b) and the third subparagraph of art. 33(1) of the Unified Patent Court Agreement (UPCA) in allocating competence between UPC divisions in multi-defendant infringement actions. 

In Bosch v Valeo, the Court considered the requirements in art. 33(1)(b) UPCA for bringing a claim against multiple defendants before a LD, namely the existence of a “commercial relationship” and the requirement that the action relate to the “same alleged infringement”.

In Valeo v Bosch, the Court held that art. 33(1), third subparagraph, does not constitute an exception to the jurisdiction of local and regional divisions in infringement actions involving defendants established outside the territory of the Contracting Member States. The Court stated that, where a defendant is established outside the territory of the Contracting Member States, the central division “takes the place of” the local or regional division that would otherwise have been competent under the defendant domicile criterion in art. 33.1(b) UPCA. The Court drew an analogy with the fourth subparagraph of art. 33.1 UPCA which confers competence on the Central Division where a defendant is domiciled in a Contracting Member State which has neither a LD nor participation in a regional division. In both situations, the Central Division serves as the relevant forum under the defendant-domicile criterion.

The Court then addressed the effect of multiple defendants. art. 33.1(b) UPCA allows for an action to be brought against several defendants at the division of the domicile of one defendant, provided the defendants have a commercial relationship and the action concerns the same alleged infringement. According to the Court, this mechanism also applies where one or more of the defendants are established outside the territory of the Contracting Member States. In that situation, the Central Division may be selected as the competent division through the defendant established outside the UPC territory, provided that the conditions of Art. 33.1(b) are fulfilled.

The Court’s reasoning stressed that, in a case involving both UPC territory domiciled and non UPC territory domiciled defendants, it is necessary to avoid parallel proceedings before different divisions, and the risk of conflicting decisions that might result. That reasoning underpinned the Court’s conclusion that the presence of UPC based defendants did not require referral to a local division such as Düsseldorf.

In Bosch v Valeo, the Court gave detailed guidance on the two conditions in art. 33(1)(b). As to commercial relationship, the court stated that the test requires a relationship between the defendants concerning commercial activities relating to the allegedly infringing product or product range, such as research and development, manufacture, sale and distribution. It also held that membership of the same corporate group may constitute such a commercial link, provided that the activities of each defendant in that group relate to the allegedly infringing product or product range.

The Court also made clear that the required commercial relationship may be direct or indirect, It may exist through other group companies or third party intermediaries, and it is not necessary for the defendants to participate in the same supply chain. The Court’s focus was therefore on the commercial reality of the defendants’ activities in relation to the alleged product range, rather than insisting on a single chain linking all defendants.

As to the requirement that the action relate to the same alleged infringement, the Court held that the acts relied on must concern the same patent and the same product, or the same product range, provided that, on a summary assessment at the preliminary objection stage, the products at issue appear to be substantially the same. On the material before it, the Court considered that the various products had the same structure and apparently identical dimensions and Bosch had failed to identify differences requiring a different assessment of infringement. The Court also made it clear that this assessment is irrespective of the trade/brand names under which the products are marketed.

Taken together, these two orders show a preference for concentrating related multi-defendant patent disputes before a single UPC forum where the conditions in art. 33 are met.
 

UPC

Local Division dismisses application for provisional measures finding a lack of urgency.
[Ericsson v ASUSTeK UPC CFI 319/2024 et al]

On 17 June 2026, the Milan Local Division (LD) dismissed Ericsson’s application for provisional measures against ASUSTeK and Arvato in relation to EP 3 076 673, a patent concerning the decoding and encoding of pictures of a video sequence. Ericsson alleged that various ASUS laptops, desktops and Chromebook products implementing the HEVC/H.265 standard infringed the patent and sought either an immediate injunction or, alternatively, an order requiring the defendants to provide security for damages. The application was filed on 1 April 2026, after the main proceedings on the merits had already been under way for a considerable period (since June 2024).

The order is significant for its treatment of late stage interim relief. The Court confirmed that applications for provisional measures are admissible at any stage of the main proceedings, even towards the end, because there is no express temporal limitation in r.206.1 RoP. However, where such relief is sought only after the merits action is already advanced, urgency and the balance of interests take on what the Court described as “a more specific meaning”. In that situation, the applicant must identify a new or escalating risk arising during the proceedings and explain why those new circumstances mean that it would no longer be justified to await a decision on the merits. The Court further emphasised that the applicant “cannot simply rely on a continuation of the defendant’s unlawful conduct”, and that the ordinary increase in financial loss over time will generally not suffice.

Ericsson relied on three matters said to give rise to urgency. First, it pointed to the duration of the main proceedings, noting that the oral hearing had been listed for 24 and 25 September 2026, over two years after the merits action was filed. Secondly, it relied on two recent German judgments against ASUSTeK, one concerning the HEVC/H.265 standard and the other Wi-Fi 6 technology, which Ericsson said showed a concrete risk that it might not be able to recover damages from a Taiwan based defendant with limited EU assets. Thirdly, Ericsson pointed to the launch of new allegedly infringing ASUS products in March 2026, including the 2026 ROG Strix G16 and G18 and ASUS TUF Gaming A16 and F16 models.

The LD rejected each of those points. As to delay, the Court undertook a detailed review of the procedural history and concluded that the timetable in the main proceedings mainly reflected actions taken by Ericsson, the complexity of the case and procedural developments involving both sides, rather than any simple failure by the Court to progress matters. The Court also noted that Ericsson had tolerated the defendants’ conduct for an extended period without seeking provisional relief, and reiterated that the applicant “must prove that it is not possible to await the final decision on the merits, without being exposed to a serious, unforeseen prejudice that recently arose during the proceedings”.

The German decisions did not alter that conclusion. The Court was not persuaded that those judgments established any real risk that ASUSTeK would fail to comply with Court orders or be unable to satisfy a later award. Likewise, the launch of new products in 2026 was treated as part of the ordinary pattern of ASUSTeK’s business, rather than as a materially new infringement situation.

The Court also refused Ericsson’s alternative request for security for damages. The Court considered that request to face serious admissibility difficulties and, in any event, found that Ericsson had not shown a deterioration in ASUSTeK’s solvency or any comparable circumstance justifying such relief.

Having found that urgency was not satisfied, the Court dismissed the application without needing to assess infringement or validity for the purposes of interim relief.
 

UPC

Local Division overturns ex parte injunction granted in November in relation to protective head gear. [Cardo v Resoport UPC CFI 1382/2025]

On 5 November 2025, the Milan LD granted Cardo Systems (Cardo) ex parte Preliminary Injunction (PI) against ResoSport and Shenzhen Ziwu Chuangxin Technology (together ResoSport) in relation to infringement of a patent covering a fastening device within protective head gear. On 5 December 2025, ResoSport filed an application for review pursuant to r, 212 and 197.3 RoP arguing that the relevant patent is invalid and non-infringed, and further that the balance of interests are in ResoSport’s favour. Following this application, the LD scheduled a review hearing for 12 May 2026 and, on 18 June 2026, issued a judgment lifting the injunction due to a finding that the patent is not infringed. It is notable that over seven months elapsed between the grant of the ex parte PI and the lifting of the same.

Scope of review proceedings

There was some dispute as to the scope of the review proceedings provided for by r. 212 RoP.

The Court asserted that the review must involve a thorough assessment of all the grounds on which a request for review is based. The party seeking review must be given the right to a full defence, enabling it to present every possible argument in support of its case regarding non-infringement and invalidity (such arguments which should not be limited by an ex tunc perspective). Assessment of balance of interests should be conducted on a similar basis as any factual circumstances, even those arising after an injunction has been issued, may be relevant when weighing the parties’ interests. However, the ex tunc rule does apply to the review of whether an application for an injunction was submitted with the appropriate urgency and in the assessment of whether the applicant for an injunction misrepresented facts when applying for an ex parte order. In this assessment, the only relevant circumstances are those which arose prior to the application being filed.

Furthermore, the Court noted that review proceedings may be the proper procedural context for an assessment of appropriate compensation for any injury caused by inappropriately granted provisional measures.

Outcome of review

The Court considered the construction of claim 1 of the patent. In making its finding, the Court asserted that its construction was supported by the patent’s prosecution history. It was noted that UPC case law supports that, although they are not binding, the patentee’s statements during grant proceedings can be seen as an indication of the view of the person skilled in the art at the filing date.

In light of the relevant claim interpretation, the Court considered that it was more likely than not that there was no literal nor equivalent infringement by ResoSport. Since there was not a sufficient degree of certainty that the patent is infringed, the other requirements for obtaining a PI were not examined and the order granting the injunction was revoked.

Compensation for ResoSport

R. 213.2 RoP stipulates that where provisional measures are revoked, the Court may order the patentee, upon request of the wrongly injuncted party, to provide the wrongly injuncted party appropriate compensation for any injury caused by those measures.

ResoSport asserted that it suffered serious reputational damage as a direct consequence of the manner in which the injunction was enforced by the Cardo. Therefore, ResoSport requested the release of the full amount of security paid by Cardo in its favour, pursuant to r. 352.2 RoP. However, the Court asserted that ResoSport had not provided any concrete evidence of the harm it alleged. The application for the release of the security in favour of ResoSport was therefore rejected.

ResoSport was, however, entitled to the release of EUR 28,000 of the security which was the value of the interim payment awarded by the Court (50% of the maximum recoverable representation costs). The remaining sum of EUR 72,000 was ordered to be paid back to Cardo.
 

USA

FDA issues new guidance regarding listing patent information in the Orange Book.

The FDA has issued draft guidance in relation to Forms FDA 3542a and FDA 3542 which are the forms New Drug Application (NDA) applicants must use to submit patent information for listing in the Orange Book. The draft guidance in general consolidates existing requirements but also clarifies some procedural points in relation to use codes, method of use patents, submission procedures and discontinued drug products. The draft guidance can be found here.
 

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