Samsung v ZTE: Will multiple rate setting trials become more common?

As has been widely reported, it appears as if Samsung and ZTE may have settled their 5G licensing dispute. Although not the first case in which parallel rate setting actions have been brought (for example Conversant’s dispute with Huawei and ZTE entailed rate setting proceedings in both the UK and China, alongside German infringement claims), this is the first time multiple rate setting judgments have been produced by different courts in the same dispute. As well as the rate setting judgments from the UK and China, it is also notable that the Munich court also set out a hypothetical rate setting. This gives rise to the question as to whether this will develop into a trend, and will multiple rate setting actions become more common in FRAND disputes?

Which courts are willing to set FRAND rates?

To date, few courts have been willing to determine a FRAND rate, especially on a global basis. The UK courts have done so over the last ten years, starting with the case of Unwired Planet v Huawei. The Chinese courts have also been willing to do so, with several parties requesting rate determination on either a global basis or in respect of China only.  In contrast, the US courts will only do so where both parties consent to a rate setting, which has generally not been the case, at least with respect to a single jurisdiction. However, following the Sun Patent Trust v Vivo, and Ericsson v Transsion UPC actions, and in light of several supportive comments by some of the UPC judiciary [UPC rate setting article], it seems as if the UPC may join the list of jurisdictions willing to set FRAND rates.

Why multiple rate-setting actions may become more common

It has also mostly been the case that only one side of the dispute has requested a rate setting. Where multiple rate settings have been sought, as with Samsung v ZTE, it is because each side is prepared to have the FRAND rate determined by the court, but wishes to do so in a jurisdiction they perceive to be favourable to their case. With rate setting now well established in the UK and China, and with the increasing likelihood of rate setting becoming a strategic option at the UPC, there is certainly greater potential for parties to face multiple FRAND rate setting actions in a particular dispute. If so, what happens when different courts reach different conclusions as to what the FRAND rate should be?

What happens when courts reach different conclusions?

In the UK, a FRAND rate determination is not binding on an implementer. The implementer can refuse to enter into the court-determined licence; if so they will be deemed to be unwilling, having refused the offer of a FRAND licence, and, subject to a finding of patent infringement, will be subject to a patent injunction in the UK. It has been argued, in contrast, that a patent owner can be forced to offer and enter into a UK determined licence. This is because the UK treats FRAND disputes primarily as a matter of contract law, and it has been argued that a failure to offer a FRAND licence is a breach of contract which can be remedied by specific performance, i.e. issuing a positive injunction requiring the patent owner to enter the licence (or, as an alternative remedy by an award of damages). However, this has not yet been decided by the UK courts, and it is by no means certain that this will be the eventual outcome. Chinese FRAND determinations are potentially binding on the parties, but it is noted that in the case of ZTE v Samsung, the Chinese court enquired as to whether Samsung would abide by the Chongqing court’s decision, with Samsung responding that it always abides by the law, but it had given an undertaking to the UK court to abide by the UK court decision. Further, even if a court would be willing to force a party to enter into a FRAND licence, courts in other jurisdictions, notably Germany and the UPC, have been willing to issue anti-suit injunctions to prevent this, for example in the dispute between Amazon and Interdigital.

All of which means it is possible that multiple rate setting procedures could result in different determinations, with neither side able to actively enforce one on the other. Nevertheless, these independent adjudications have the potential to be important indications assisting the parties to reach settlement, which is what appears to have now happened in the Samsung and ZTE dispute. There was also some support for this from the UPC, which proposed that the parties enter into a global cross-licence on the basis of either the Chinese decision or the German ruling already handed down, but if not, suggested that they submit the case for mediation before the UPC’s Patent Mediation and Arbitration Centre (PMAC) (UPC_CFI_189/2025, Order of 13 May 2026, Settlement Proposal).

Could arbitration offer a practical alternative?

Clearly, conducting concurrent FRAND determinations in two or more jurisdictions raises concerns about efficiency. One possible alternative is the use of arbitration. This can arise with the agreement of the parties, and is sometimes useful in FRAND disputes, particularly in the case of renewals. As the parties have more control over both the procedure and the judicial panel, it has the potential to overcome some of the problems parties face in agreeing to a determination by a single court, although it does not entirely solve them. Lord Justice Arnold has even proposed that the UK court could set the terms of arbitration when parties were unable to agree this. The UK court has also ruled that a patentee can meet its FRAND obligation by offering an implementer a licence in which the final FRAND rate is determined by arbitration.

The direction of travel for FRAND disputes

Parties are bringing FRAND cases before an increasing number of courts around the world. Each has its own approach to the question of FRAND, and many seem unlikely to adopt a rate setting approach. Nevertheless, a number of recent judicial developments, including those in Samsung v ZTE, suggest that we may see more rate setting litigations, including concurrent rate setting actions, as well as rate setting by arbitration.

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