Irides: Weekly global patent litigation update

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

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

Stop press: UK

English Court finds Samsung's 5G patent valid, essential and infringed.
[Samsung v ZTE [2026] EWHC 2235 (Pat)

This morning, Mr Justice Mellor handed down his decision in Technical Trial A in the proceedings of Samsung v ZTE concerning the validity of Samsung's 5G patent. The Court concluded that the patent is valid, essential and infringed by ZTE and that, in the absence of a FRAND licence, ZTE threatens to continue infringing. The judge encouraged the parties to arrange the Form of Order hearing swiftly.  We will publish a full report in next week's update. Read the judgment here.
 

Germany

Munich I Regional Court issues FRAND Guidelines setting out clear indication of how they will deal with SEP disputes.

On 13 August 2026, the 7th Civil Chamber of Munich I Regional Court issued its FRAND Guidelines consolidating its recent decisions in ASUS I, ASUS II, Renault, and ZTE v Samsung. The document provides a clear indication of how the 7th Civil Chamber intends to decide SEP disputes and how it will assess whether a patent owner's licence offer is FRAND.

The most notable development is the Court's adoption of a two-stage framework distinguishing between an implementer's "external willingness" and its "internal willingness" to take a licence. An implementer seeking a substantive FRAND determination will generally be expected to pay at least the amount it considers due and, in some cases, provide additional security before the Court will engage in a detailed FRAND assessment. If the implementer has obtained or applied for a rate-setting order in another jurisdiction, then this may have an impact on the undisputed amount to be paid and the security to be provided to demonstrate “external willingness”. Once “external willingness” has been established, the Court will go on to consider the SEP-holder’s offer - if that falls within the FRAND range but is not accepted, the implementer has not demonstrated “internal willingness”.

In rejecting the need for a “safe harbour” concept that would shield an implementer from injunctive relief, the Court noted that one was not needed given the possibility of a “FRAND first” process before the Chamber.  This very early hearing would consider only FRAND issues and the briefs would be limited to 25 pages.  This process will be a way for implementers to signal their willingness to discuss the unresolved issues.

On valuation, the Court confirms that comparable licence agreements remain the primary method for assessing FRAND rates, with top-down analysis playing a secondary role as a reasonableness check. The guidelines also emphasise that FRAND represents a range, rather than a single rate, and indicate that the Court is prepared to undertake a level of economic analysis more commonly associated with UK rate-setting proceedings. Guidance is given on the suitability of licence agreements as comparables but it is noted that whilst the patent holder may determine which agreements best reflect the value of the portfolio, these must have a high degree of alignment with the licence in question and there is an associated obligation to justify why other agreements were excluded.  The Court discussed key topics such as past use and geographic adjustment.  Further, when considering the role of patent pools/platforms, it is notably sceptical of the use of these rates as comparables for bilateral licences, reasoning that pools operate under fundamentally different economic incentives.

The Court re-examined its approach in previous cases to pull out principles that could be applied to current analogous scenarios. The two case studies chosen were the AVANCI 5G platform licence and streaming as a service. When considering the AVANCI 5G platform licence, the Court noted the platform’s 90% coverage and posited that the ARB would increase by a factor of three from that in the ZTE/Samsung decision to reflect the longer average useful life of a car.  This leads to the conclusion that $36.72 would be FRAND (an amount higher than the $32 per vehicle rate of the AVANCI 5G platform). When the guidelines consider a top-down analysis of video streaming services, it concludes that a reasonable ARB falls somewhere between 13% and 20% and that adjustments would need to be made for “standard” streaming subscriptions vs “premium” offerings. 

These guidelines signal a greater willingness to engage with the substance of FRAND valuation. For licensors, the decision underscores the importance of robust comparable licence evidence; for implementers, it highlights the need to demonstrate genuine willingness through meaningful payments rather than negotiation conduct alone.
 

UPC

The Hamburg Local Division provides further guidance on the relationship between patent pool and bilateral licensing, implementer willingness, and the scope of the FRAND defence. 
[Fraunhofer v HMD UPC_CFI_495/2025]

On 24 August 2026, the Hamburg Local Division (LD) issued a significant FRAND decision in Fraunhofer v HMD, rejecting HMD’s FRAND defence while providing guidance on when an implementer can insist on a bilateral SEP licence instead of taking a pool licence.

The LD confirmed that an SEP owner can satisfy its FRAND obligations if it offers one FRAND-compliant licence, whether through a patent pool or bilaterally. Accordingly, where both routes are available, an injunction will not be defeated if at least one of them complies with competition law.

Importantly, however, the LD recognised that implementers may in some circumstances legitimately insist on a bilateral licence. Examples include where the implementer seeks a multi-standard licence, wishes to pursue cross-licensing arrangements, or has already made substantial progress securing bilateral licences from a significant number of other pool participants. In those circumstances, Art. 101 and 102 TFEU may require SEP owners to engage in bilateral negotiations rather than simply directing the implementer to the pool.

The decision emphasises that opting for the bilateral route does not lessen the implementer’s obligation to demonstrate willingness throughout the course of the negotiations. An implementer must provide coherent commercial reasons for pursuing bilateral licences and act consistently with that position. The LD held that insistence on bilateral licensing may itself indicate unwillingness where the implementer fails to justify its choice, does not secure bilateral agreements with other licensors within a reasonable period and fails to provide security.

Applying those principles, the LD found that HMD had not established a legitimate basis for rejecting Via Licensing’s AAC pool offer and demanding a bilateral licence. HMD had not requested a multi-standard licence, had no realistic cross-licensing prospects with Fraunhofer, and had failed to obtain bilateral licences with most other pool contributors despite many years of negotiations.

In considering other factors in its assessment of willingness, the LD held that HMD’s failure to provide security was a significant indicator of unwillingness. The LD declined to adopt the stricter “automatic trigger” approach, favoured by the Munich LD and the German Federal Court of Justice, that treats security as an automatic prerequisite for a FRAND defence. However, the LD considered the absence of security over the course of nine years of negotiations to be highly relevant in circumstances where HMD had rejected an uncontested FRAND pool offer while failing to secure comprehensive bilateral coverage.

Given the finding of unwillingness, the LD did not need to consider whether Fraunhofer’s bilateral licence offer was FRAND. Further, the LD regarded the AAC pool offer as FRAND, noting that HMD had not raised any substantive objections to the offer during the negotiations and that the pool’s widespread market adoption, with nearly 1,000 licensees, reinforced its legitimacy.

In light of the rejection of the FRAND defence, the Court granted the injunction requested having found the relevant patent to be valid and infringed.

This decision confirms that implementers may, in some circumstances, insist on bilateral licensing and that courts will closely scrutinise whether that position reflects a genuine licensing strategy or merely a means of delaying licence execution while continuing to implement the standard.
 

UPC

Milan Central Division rejects challenge to alleged strawman revocation action.
[LS9 GmbH v Bellissa HAAS UPC_CFI_860/2025]

The Milan Central Division has appeared to lower the standing threshold required to bring a central revocation action, potentially paving the way for revocation actions brought by a so-called “straw person”.

In this case, the patentee challenged the admissibility of the revocation action on the basis that the claimant lacked the necessary interest in the patent and that it was being used as a “front” for another company involved in parallel infringement and revocation proceedings.

In rejecting the patentee’s challenge, the Court held that the requirement in Art. 47(6) UPCA that a party entitled to bring an action should be “concerned by a patent” should be interpreted broadly. The Court distinguished between private and commercial conduct, holding that the conduct of legal entities is necessarily commercial. Further, the Court considered that legal entities generally have a fundamental interest in ensuring that patents which should not have been granted are not upheld and that this was the case even where the entity was operating in a different market sector. Accordingly, legal entities will ordinarily be regarded as being concerned by a patent for purposes of Art. 47(6).

The Court also dismissed arguments that the claimant was a “front” for another company already involved in parallel proceedings. The fact that the claimant was coordinating the revocation action with parallel proceedings did not negate the claimant’s own legal interest in challenging the patent.
 

USA

USPTO faces pushback over proposed real party in interest disclosure rule for ex parte re-examinations. 
[Federal Register/Vol. 91, No. 139/Wednesday, July 22, 2026/Proposed Rules]

In July 2026, the USPTO published its proposal to amend the rules of practice to require a third party requesting ex parte re-examination to provide a statement identifying all real parties with an interest behind such a request.

The rationale for the change is that the USPTO is not currently able to independently verify whether an anonymous requester, or a related party, is barred by the estoppel provisions due to their involvement in a previous inter partes review or post-grant review. The change would allow the USPTO to assess the real parties behind a re-examination request and is said to enhance its “ability to respond to false certifications, misrepresentations and fraud”. While requesters would still be able to keep their identities confidential from the public and the patent owner upon request, the information would have to be disclosed to the USPTO itself.

The period for comment on the proposed change ended on 21 August 2026 during which time the amendment received a number of objections.

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

Episode 84: Paris Local Division Refuses Stay UPC proceedings despite parallel National Revocation action.

Episode 85: Court of Appeal confirms retroactive effect of overturned UPC judgments, having no legal effect for enforcement purposes.