England and Wales High Court (Patents Court) Decisions

i)                   for LTE: infrastructure 0.42%; mobile devices 0.55%;

ii)                 for GSM/UMTS: infrastructure 0.21%; mobile devices 0.28%.

i)                   for LTE: infrastructure 0.036%; mobile devices 0.040%;

ii)                 for UMTS: infrastructure 0.015%; mobile devices 0.015%;

iii)               for GSM: infrastructure zero; mobile devices zero.

i)                   for LTE: infrastructure 0.061%; mobile devices 0.059%;

ii)                 for UMTS: infrastructure 0.046%; mobile devices 0.046%;

iii)               for GSM single mode: infrastructure 0.045%; mobile devices 0.045%.

The issues

i)                   Unwired Planet contend that they have established that they hold valid and essential SEPs (winning technical trials A and C) and that they have made offers of a licence on FRAND terms.  Its preferred offer is for a global licence and since global licences are FRAND a patentee is entitled to insist on a global licence.  In terms of rate Unwired Planet will accept whatever rate and terms are set by the court.  They submit that Huawei are not willing to take this FRAND licence and are an unwilling licensee.  Accordingly the court should grant an injunction restraining Huawei from infringing.  If the court decides that Unwired Planet are not entitled to insist on a global licence then Unwired Planet have offered a UK portfolio licence and will accept such a licence at a rate and on terms set by the court.

ii)                 Huawei contend that Unwired Planet’s 2014 offers were not FRAND.  They also contend that Unwired Planet’s commencement of this action was an abuse of their dominant position and contrary to the CJEU’s judgment in Huawei v ZTE (Case C-170/13) 16^th July 2015 [2015] Bus LR 1261.  Accordingly Huawei have a complete defence to any claim for an injunction.  In any event Unwired Planet are not entitled to insist on a global licence because such a licence would not be FRAND.  Only a UK portfolio licence would be FRAND and Huawei will accept any royalty rate set by the court.  Huawei cannot state that they will accept whatever terms of a UK licence are set by the court, but that is only because of a manoeuvre by Unwired Planet addressed below. Huawei accept they must have a licence to be permitted to sell products in the UK and therefore hope that the terms set by the court are ones they can abide by.  They recognise that if there is no licence in place and no defence under competition law then an injunction would follow. 

Confidentiality

[26A    Once the draft was handed down a hearing in private was convened to work out a way forward.  At the hearing were representatives of Unwired Planet, Huawei, Samsung and Ericsson.  The parties would submit a form of the draft showing which party claimed confidentiality in which part and would submit a redacted form which could be made public without compromising any claimed confidentiality.  Arguments about what was and was not confidential would be heard at later hearing to deal with consequential matters.  The drafts were prepared quickly and submitted.  I am grateful for the work which went into this.  However in its form as submitted the redacted version left parts of the judgment unnecessarily unintelligible.  So I have prepared this version, designated as Public I. All the changes as compared to the unredacted judgment are in square bracketed italics like this paragraph.   Some of the redactions have been left as square bracketed ellipsis.  In others, some explanatory text and anonymised designations have been included.  The draft was given to the parties in advance for checking.] 

The evidence

i)                   Sami Saru;

ii)                 Timothy Michael Robbins;

iii)               Leslie Dale Ware.

Concurrent evidence – a “hot tub”

The factual background

The Master Sale Agreement (MSA)

Contacts with Samsung and others

Contacts with Huawei

October 2013

November 2013 - further contact with Huawei

The Lenovo deal

The litigation

“6.1 When an ESSENTIAL IPR relating to a particular STANDARD or TECHNICAL SPECIFICATION is brought to the attention of ETSI, the Director-General of ETSI shall immediately request the owner to give within three months an irrevocable undertaking in writing that it is prepared to grant irrevocable licences on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions under such IPR to at least the following extent:

● MANUFACTURE, including the right to make or have made customized components and sub-systems to the licensee's own design for use in MANUFACTURE;

● sell, lease, or otherwise dispose of EQUIPMENT so MANUFACTURED;

● repair, use, or operate EQUIPMENT; and

● use METHODS.

The above undertaking may be made subject to the condition that those who seek licences agree to reciprocate.”

i)                   Article 6.1bis which provides that the undertaking should be binding on successors in title.

ii)                 Article 6.2 which provides that an undertaking for one patent applies to all members of the same patent family unless a specific written exclusion is made at the time.  Unwired Planet also pointed out that Mr Cheng of Huawei agreed that an undertaking restricted to a particular national jurisdiction would not make much sense [Day3 p125-126]. I accept Mr Cheng’s evidence.

iii)               Article 6.3 which provides that so long as the undertaking is not given the relevant committee should be wary of adopting the relevant part of the standard and may suspend work on it.

iv)               Article 8.1 which provides for consequences if the patentee refuses to give the undertaking.

(ii) The history and purpose of FRAND

“For good faith users who are willing to pay reasonable royalties, holders of standards-essential patents should not directly refuse to grant licenses. On the one hand, it is necessary to ensure that patentees can obtain sufficient returns from their technical innovations. On the other hand, holders of standards-essential patents should be prevented from charging exorbitant royalty rates or attaching unreasonable terms by leveraging their powerful position forged by the standards. The core of the FRAND obligations lies in the determination of reasonable and non-discriminatory royalties or royalty rates.”

[section IV 2^nd paragraph (p56 of the translation)]

i)                   the EU Commission Decision AT.39985 Motorola – Enforcement of GPRS Standard Essential Patents of 29^th April 2014 at para 76-77;

ii)                 the CJEU in Huawei v ZTE at paras 48-55;

iii)               the US courts in Microsoft v Motorola (Judge Robart) at para 71-72 (p25); Ericsson v D-Link 773 F.3d 1201 (Fed Cir 2014) at page 7-8; In re Innovatio IP Ventures LLC Patent Litigation Case No 11 C 9308, 2013 WL 5593609 (N.D. I11 Oct. 3, 2013) pages 14-15.

(iii) Enforceability of the ETSI FRAND undertaking and French law

(1) Does making ETSI declaration form a contract at all

“1. the consent of the party assuming the obligation

2. capacity to contract

3. a definite object which is the subject matter of the obligation

4. a cause licit”

i)                   The ETSI IPR declaration form sets out the terms of an offer made by ETSI to IPR holders who wish to declare their IPR as essential to a standard.

ii)                 The declaration form identifies the conditions on which ETSI will either include or maintain the IPR holder’s IPR in ETSI’s database of essential IPR, namely that the IPR holder must agree to grant irrevocable licences under its IPR on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy. 

iii)               The IPR holder accepts the offer made by ETSI when it completes and signs the IPR Licensing Declaration Form and sends it to the Director General of ETSI.

iv)               This gives rise to a contract on the terms set out in the IPR Licensing Declaration Form between ETSI and the IPR holder.

v)                 In addition to its contractual obligation to ETSI, the IPR holder is also contractually bound with respect to any third party who wishes to practice the standard to grant irrevocable licences under its IPR on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy. This is because the contract between ETSI and the IPR holder is a contract for the benefit of third parties.

(a) whether making the declaration imposes any sufficient obligations on ETSI to form a contract

“Unless otherwise specified, all IPRs contained [in the ETSI IPR Database] have been notified to ETSI, with an undertaking from the owner to grant licenses according to the terms and conditions of Clause 6.1 of Annex 6 of the ETSI Rules of Procedure (the ETSI IPR Policy).”

[ETSI Guide on IPRs 19 September 2013; ETSI Directives Version 36, June 2016]

(b) whether the declaration forms lack sufficient clarity to impose legal obligations on the declarant

“In this regard I note that the declarant may choose to make the declaration: (i) in respect of either IPR relating to contributions made to the standard setting process by the declarant or any of its IPR; (ii) in relation to specific ETSI standards / specifications or all of them; and (iii) subject to a condition of reciprocity. It is also open to the declarant to inform ETSI that it does not wish to make its IPR available for licensing on FRAND terms at all.”

(c) whether in truth the declaration is really just a way of giving information to ETSI and the market

“In accordance with Clause 4.1 of the ETSI IPR Policy the Declarant and/or its AFFILIATES hereby informs ETSI that it is the Declarant and/or its AFFILIATES’ present belief that the IPRs disclosed in the attached IPR Information Statement Annex may be or may become ESSENTIAL in relation to at least the ETSI work Item(s), STANDARD(S) and/or TECHNICAL SPECIFICATIONS identified in the attached IPR Information Statement Annex.”

(underlining mine)

“IPR LICENSING DECLARATION

In accordance with Clause 6.1 of the ETSI IPR Policy the Declarant and/or its AFFILIATES hereby irrevocably declares the following (check one box only, and subordinate box, where applicable):

 To the extent that the IPR(s) disclosed in the attached IPR Information Statement Annex are or become, and remain ESSENTIAL in respect of the ETSI Work Item, STANDARD and/or TECHNICAL SPECIFICATION identified in the attached IPR Information Statement Annex, the Declarant and/or its AFFILIATES are prepared to grant irrevocable licences under this/these IPR(s) on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy.

 This irrevocable undertaking is made subject to the condition that those who seek licences agree to reciprocate (check box if applicable).

 The Declarant and/or its AFFILIATES are not prepared to make the above IPR Licensing Declaration (reasons may be explained in writing in the attached IPR Licensing Declaration Annex).

The construction, validity and performance of this IPR information statement and licensing declaration shall be governed by the laws of France.

SIGNATURE

By signing this IPR Information Statement and Licensing Declaration form, you represent that you have the authority to bind the Declarant and/or its AFFILIATES to representations and commitments provided in this form.

[signature etc] ___________”

(2) Art 1121 of the old French Civil Code and stipulation pour autrui

Art. 1205. – A person may make a stipulation for another person.

One of the parties to a contract (the ‘stipulator’) may require a promise from the other party (the ‘promisor’) to accomplish an act of performance for the benefit of a third party (the ‘beneficiary’). The third party may be a future person but must be exactly identified or must be able to be determined at the time of the performance of the promise.

Art. 1206. – The beneficiary is invested with a direct right to the act of performance against the promisor from the time of the stipulation.

Nevertheless, the stipulator may freely revoke the stipulation as long as the beneficiary has not accepted it.

The stipulation becomes irrevocable at the moment when the acceptance reaches the stipulator or the promisor.

Art. 1207. – Revocation may be effected only by the stipulator, or, after his death, by his heirs. The latter may do so only after a period of three months has elapsed from the date when they put the third party on notice to accept the benefit of the promise.

If it is not accompanied with the designation of a new beneficiary, the revocation benefits the stipulator or his heirs, as the case may be.

Revocation is effective as soon as the third party beneficiary or the promisor becomes aware of it.

Where it is made by testament, it takes effect from the moment of the testator’s death.

The third party who was initially designated is deemed never to have benefited from the stipulation made for his benefit.

Art. 1208. – Acceptance may come from the beneficiary or, after his death, his heirs. It may be express or implied. It may take place even after the death of the promisee or the promisor. ”

Art. 1209. – The stipulator may himself require the promisor to perform his undertaking towards the beneficiary.”

i)                   Where an IPR holder gives an undertaking under Clause 6.1 of the ETSI IPR Policy, the IPR holder is the “promisor”; and ETSI is the “stipulator”. A person wishing to implement the standard is the “beneficiary”.

ii)                 The primary effect of the declaration is to create a contract between the promisor (the IPR holder) and the stipulator (ETSI), the terms of which require the promisor to grant a right (a licence on FRAND terms) to the beneficiaries (the implementers of the standard).

iii)               Once it has exchanged consent with the stipulator (ETSI), the promisor has entered into a contract by virtue of which it is bound under French law to be prepared to grant the licence on FRAND terms. 

iv)               The fact that the precise FRAND terms and conditions are yet to be agreed between the promisor (the IPR holder) and the beneficiary (the implementer) and that there is no licence does not detract from this. The promisor’s undertaking suffices, as a matter of French law, to create a contract between ETSI and the promisor.

v)                 The fact that an IPR holder may be a non-member of ETSI is not relevant to this analysis.

“If Professor Fauvarque-Cosson’s analysis is correct, the same Licensing Form would be considered as: (i) the offer made by ETSI; (ii) the acceptance by the IPR holder; and (iii) setting out the key terms of future contracts to be formed with interested third parties. As a matter of French contract law this plurality is unconvincing and does not allow for the identification of the various different components of those separate legal operations: a first contract between ETSI and an IPR holder, and a second between the IPR holder and a third party implementer.”

(3) The nature of any obligation which does arise

(4) The efficacy of a unilateral commitment under Article 1100-1 of the French Civil Code.

Enforceability of the FRAND undertaking – looking overall.

(iv) Can there be more than one set of FRAND terms?

i)                   Unwired Planet submitted that if each side made a FRAND offer then the patentee’s offer wins in the sense that, all other things being equal and assuming there is no defence to an injunction, the court should grant an injunction against the defendant.  That is because by making a FRAND offer the patentee has discharged its obligations under the FRAND undertaking – which obligations are said to be limited to making FRAND offers as distinct from being obliged to accept FRAND terms offered by the putative licensee.

ii)                 Huawei submitted that if each side made a FRAND offer then the implementer should win and the injunction should be refused.  That is because the patentee in this circumstance would not be accepting the licensee’s FRAND terms.  The implementer’s terms are the ones which should be accepted because the FRAND system is for the benefit of implementers in order to allow them access to the technology. 

A single set of FRAND terms and the Vringo problem

FRAND as a process

“…a FRAND commitment is not simply a commitment to abide by the terms of a court-determined FRAND licence and / or FRAND rate, but requires the SEP holder to behave in particular ways (and for instance to make (or at least attempt to make) offers capable of being FRAND).”

(para 41)

A single set of FRAND terms - conclusions

(v) Can the court set a FRAND rate or other FRAND terms?

(vi) How to assess what is FRAND

“The object of the comparability exercise, in this as in any other branch of the law, is to find the closest possible parallel.  If there is an exact parallel, there is no point in looking any further. If there are slight differences, an allowance may be made. But once you have found your comparables, whether one or more, which enable you to arrive at the appropriate figure, it would surely be erroneous to modify that figure by reference to other cases which are not truly comparable at all, so as to bring the case into line with a predetermined range.  This was, with great respect, the mistake which the hearing officer made.”

(vii) A hard-edged non-discrimination aspect of FRAND

(viii) Concepts used to derive a FRAND rate with telecoms standards

 “Unpacking” licences

“the details of the unpacking process make little significant difference to the implied […] rates: the rates ascertained by Mr Bezant, Mr Lasinski or Dr Leonard were all in a relatively close range ([…]), whichever unpacking method was used {U1/6/1}.  As Mr Lasinski explained, the portfolio strength metrics employed by the three valuation experts have a minimal effect on the effective rates they derive from the […] Licence because […] that this factor swamps almost everything else.” [closing paragraph 77]

“The differences are not that great on the unpacking, in the context of the exercise. […] And, indeed, given the uncertainty of unpacking cross licences.  It's not as if one number is strong and another it is weak.  They are -- they are all somewhat fragile when you're unpacking a cross licence.”

and

“But I'm just signalling that when I say not sensitive that's partly the numbers don't move very much, but it's also partly a recognition that the numbers themselves are inherently uncertain.”

FRAND on the facts of this case

(i) Relevant SEPs – shares and ratios

The numerator

Huawei’s case:

Unwired Planet’s case:

The denominators and the resulting fractions

Huawei’s case:

Unwired Planet’s case:

Huawei’s case:

i)                   post-MSA, pre-Lenovo: GSM […], UMTS […], LTE […]

ii)                 post-MSA, post-Lenovo: GSM […], UMTS […], LTE […]

Huawei’s case:

Unwired Planet’s case:

Multimode weighting

Huawei’s case:

Unwired Planet’s case:

(for example 1.25% = 80% x 1.44% + 20% x 0.49%)

Huawei’s case (C13/3/2, in part in databook p8)

Unwired Planet’s case:

The numerical evidence generally and rounding

(ii) The parties’ rival submissions on royalty rates

i)                   for 4G/LTE: infrastructure 0.041%; mobile devices 0.040%;

ii)                 for 3G/UMTS: infrastructure 0.031%; mobile devices 0.031%;

iii)               for 2G/GSM single mode: infrastructure 0.030%; mobile devices 0.030%.

Huawei’s case on rates

[chart redacted]

Unwired Planet’s case on rates

2G/3G/4G multi-mode royalty rates based on the comparables that Mr Bezant considers to be most relevant, based on UP’s Updated MNP and adjusted for the 80/20 Rule

[chart redacted]

A striking correlation – aggregate royalty

i)                   An Ericsson press release in April 2008 referred to a public statement by “wireless industry leaders” (Ericsson, Alcatel-Lucent, NEC Corporation, NextWave Wireless, Nokia, Nokia Siemens Networks and Sony Ericsson) that they had “agreed a mutual commitment to a framework for licensing IPR” relating to LTE and supported the idea that a reasonable maximum aggregate royalty level for essential IPR in handsets is a “single-digit percentage of the sales price”.

ii)                 Another Ericsson press release in 2008 states that they expect to hold a relative patent strength of 20-25% of all standard essential IPR for LTE and that Ericsson believes the market will drive all players to act in accordance with these principles and to a reasonable maximum aggregate royalty level of 6-8% for handsets.  Ericsson’s fair royalty rate for LTE is therefore expected to be around 1.5% for handsets.

iii)               A Huawei press release in 2009 states that Huawei “anticipates and supports a low single-digit percentage of sales prices as a reasonable maximum aggregate royalty rate applicable to end-user devices”.  Huawei believe they will hold 15-20% of all essential patents relating to LTE standards therefore a royalty rate with some flexibility, but not to exceed 1.5%, is expected.

iv)               In 2009 Alcatel-Lucent said it expects to license its LTE SEPs for handsets at a discounted royalty of no greater than 2%.

v)                 In an undated press release Nokia stated that it believes it will have 20-30% of all LTE standards-essential IPR and that it expects its single-mode and multi-mode LTE rates to be in a range of 1.5% and 2.0% of the sales price of an end-user device, respectively.

vi)               In an undated press release Nokia Siemens Networks believes it will hold approximately 10 to 15% of all LTE standards-essential patents and that it anticipates its LTE royalty rate for end-use terminal devices will be in the region of 0.8% of the selling price.

vii)             In a December 2008 press release Qualcomm states that it does not agree with cumulative royalty caps or proportional allocations of such royalty caps. 

viii)           In an undated press release Motorola states that it expects that its essential royalty rate for LTE systems and equipment (e.g. infrastructure and subscriber handsets) will be approximately 2.25%.

(iii) The MNPA and HPA techniques

The MNPA technique

(1)   Identifying all declarations using a list of declared SEPs from the ETSI IPR database as of 12 March 2014.

(2)   Defining LTE and then limiting the declarations to LTE-specific declarations.

(3)   Grouping patents into families and removing duplication.

(4)   Filtering down to “Live” families.  This removes patents and applications that have been abandoned or expired and filters out families which do not have a pending or issued US or EP patent.

(5)   Separating out what Unwired Planet called “Core” LTE.  Here the word core connoted importance.  It is not drawing the distinction drawn elsewhere between different kinds of infrastructure (RAN and Core network).  Core in this sense is identified using a simple pre-2009 cut off.  Any patent with a priority date after 31^st December 2008 was non-Core. 

(6)   Separating out handset families from infrastructure only families.  If a patent has a handset claim it is in the handset family even if it also has infrastructure claims. The resulting sets were called “Handset Candidate Families” and “Infrastructure Only Candidate Families”.

(7)   Applying essentiality filters, which in the original MNPA involved three percentages:

a.       28% to represent over-declaration (i.e. on the basis of published studies by Fairfield/ Goodman and Myers (mentioned below) which indicate that only 28% of declared SEPs are truly essential);

b.      90% to take account of patents which are essential to options in the standard;

c.       80% to take account of patents essential to features in the standard which are not deployed. 

The MNPA and infrastructure

Unwired Planet’s approach to 2G and 3G

The HPA technique

(1)   “Identification and De-duplication”: a list of declared essential patents and patent applications was created using the ETSI database and also making reference to the Korean Telecommunications Technology Association database.  The list was de-duplicated.

(2)   “Family members not expressly declared to ETSI”: Since the ETSI IPR Policy a declaration applies to a patent family as a whole, additional family members not expressly declared to ETSI were identified.  This was done using the public INPADOC database. 

(3)   “Grouping families in five categories”: the patents and applications were collected into families.  The families were collected into five groups.  Only group 1 was selected for further analysis.  The five groups were:

Group 1 – at least one issued and non-expired patent and an English or Chinese language member;

Group 2 – at least one issued and non-expired patent but no English or Chinese language member;

Group 3 – only expired members

Group 4 – no issued patents (“issued” means granted)

Group 5 – family information not available on INPADOC

(4)   “Grouping families into standards”: the families were classified into three classes: LTE/4G, UMTS/3G, GSM/2G by reference to the standards to which they were declared on the ETSI website.  The families were also classified as relevant either to RAN (which in this study includes handsets) or core network (“CN”).  This was also based on the standards to which they were declared.

(5)   “Essentiality analysis of Group 1 families”: The Evaluators reviewed the essentiality of a patent in each Group 1 family.  The review took about 30 minutes per family.  The patent and relevant standard were selected in accordance with given rules.  The claims of the patent were compared to the relevant standard specification to determine if the standard required all the elements of the claims.  If the Evaluator determines that the specification does not provide a clear reason to rule out the patent as being essential, then the family is deemed essential.  If the family provides a clear reason to rule out the patent being essential, the family is deemed not essential.  The given rules are:

a.       Patents in the family are reviewed in the following order until a patent is deemed essential or the categories are exhausted.  If multiple patents are in the categories then the earliest is looked at first.  The categories are:

                                                              i.      US issued patent

                                                            ii.      EP issued patent

                                                          iii.      Any other English language issued patent

                                                          iv.      Chinese issued patent

                                                            v.      English-language expired patent or subsequently English language application (where there is no English language or Chinese language issued non-expired member but there are members from other jurisdictions that are issued and not expired). 

b.      For each family both representative handset and infrastructure claims are identified.

c.       If the family is declared to more than one of LTE/4G, UMTS/3G, and GSM/2G then the family analysis is continued until a patent or application is found essential to each of these three standards or the categories are exhausted.

Total UE (UE means user equipment, i.e. handsets). 

Summary of the criticisms of the rival methods

The external criticisms of the MNPA

The internal criticisms of the MNPA

Step (2)

Step (4)

Step (5)

From an August 2015 paper by consultants Analysys Mason.

Step (6)

Step (7)

The criticisms of the HPA

“The exercise was overseen by Dr Kakaes and a team of engineers from Thomson Reuters.  The evaluators were not informed of the identity of the ultimate client (i.e. Huawei) or of the opposing party in the dispute for which the analysis was originally prepared (i.e. Ericsson), so as to preserve neutrality.”

“31. Accordingly, the second stage of the study was to analyse the 11,384 Group 1 patent families to seek to determine whether or not a patent that was declared essential to ETSI is, in fact, “essential”. Conclusively confirming actual essentiality is a complicated and involved legal and technical task. In this document, I use the term “is essential” (and similar terms) to mean that, after evaluation, we have determined that there is a reasonable basis for treating a patent as essential. In each such instance, we reviewed the patent specification and claims and did not identify an apparent reason to exclude the patent from being essential. Thus, a more precise interpretation of this phrase is that such a patent has passed a screen to exclude non-essential patents.”

“Compare the selected claims with the declared standard specifications and determine whether the standard specifications substantially require all the elements of the claim.”

(my emphasis)

60:13               MR SPECK:  So that's why you couldn't take an

    14     industry average?

    15          A.  No, no.  The -- the usage of the -- of the study

    16     that we've been talking about, the study referring to the

    17     census and essentiality, was very limited because -- and the

    18     reason for doing that, at least one of the reasons, was to

    19     flesh out what's Ericsson and what's Huawei, without ever

    20     telling the team in India who the players are.

    21               MR JUSTICE BIRSS:  I see.

    22          A.  So the players were ignorant.  They said: here is

    23     the census.  Here is the essentiality results for all the

    24     companies.  And then we looked at the Ericsson universe and

    25     the Huawei universe, to do further study and analysis, which

61: 1     is -- as my Lord observed -- irrelevant.

The HPA – conclusions

The implications of the decisions on the HPA for the MNPA

The MNPA –overall conclusions

(iv) Findings about the strength of Unwired Planet’s portfolio

(v) The comparables in this case

(a) 2014 Unwired Planet - Lenovo

(b) Unwired Planet-Samsung 2016

i)                   PanOptis had been attempting to buy Unwired Planet well before Samsung even came into the picture and clearly had enough money to do so at all material times.

ii)                 In March 2015, having done extensive due diligence, and knowing Unwired Planet was embroiled in major litigation in numerous jurisdictions, PanOptis offered $75 million to purchase the portfolio because they had concluded it was a good fit.

iii)               When the September 2015 offer was made all Mr Ware had was a strong feeling that Samsung would take a licence […] but he accepted in cross-examination that PanOptis was “flying a bit blind” and “taking a risk”.

iv)               In terms of its wherewithal, PanOptis has 60-70 shareholders including pension funds, hedge funds, and Yale University.  In terms of cash available to buy Unwired Planet, on 19 December 2015, Ericsson extended a convertible loan of $100 million to PanOptis and in December 2015, PanOptis received a further $160 million of licensing revenue.  PanOptis was certainly not in any state of distress when it committed to buy Unwired Planet in April 2016.

v)                 There was no commitment of any kind by Samsung, at any stage, to take a licence […].  It was simply a feeling acquired by Mr Ware in meetings conducted “over a very long dinner and drinks” with no written records at which it was conveyed to him that he would be doing a “great favour to Samsung”.  

vi)               When Samsung ultimately did take a licence it paid […], since in addition to the […] Samsung transferred patents which Mr Ware accepted were worth […].

(c) Ericsson-Huawei 2016

(d) Ericsson-Samsung 2014

(e) Ericsson-Huawei 2009

 (f) Ericsson – [M] 2013

(g) Ericsson: [N,O,P]

[…]

 (h) Ericsson – ZTE 2011

 (i) Ericsson-RIM

(j) Ericsson – Apple 2008

(k) Ericsson-Sony 2012

(l) The Ericsson licences as a whole

i)                   Ericsson-Samsung 2014: […]

ii)                 Ericsson-Huawei 2009: […]

iii)               Ericsson-[M] 2013: […];

iv)               Ericsson-[N. O. P]: […]

v)                 Ericsson-ZTE 2011: […] 

vi)               Ericsson-RIM 2010: […].

(m) Other licences

(vi) Other indications relating to rates

(vii) What is the benchmark FRAND rate for Unwired Planet?

(viii) The impact of hard edged non-discrimination on the FRAND rate

“The “non-discriminatory” principle of FRAND, however, is not widely agreed upon. The standard economic definition would mean that all users pay the same royalty – i.e., there is literally no discrimination on price or any other terms. Some economists have proposed that it means only that all firms which use the standard be able to obtain a license, with no constraint as to the terms of the license. That of course allows different firms to pay different royalties but still have access to use of the patent.

[…]

‘Non-discriminatory’ in the context of an SSO setting standards for competing firms can be interpreted to mean that all implementers of the standard should be offered licenses to the technology and all ‘similarly situated’ firms should pay the same royalty rate.”

Carlton and Shampine, Journal of Competition Law and Economics (2013) 9(3): 531-552

“144 Therefore, in order for the conditions for applying subparagraph (c) of the second paragraph of Article 82 EC [now Art 102] to be met, there must be a finding not only that the behaviour of an undertaking in a dominant market position is discriminatory, but also that it tends to distort that competitive relationship, in other words to hinder the competitive position of some of the business partners of that undertaking in relation to the others (see, to that effect, Suiker Unie, paragraphs 523 and 524).

145 In that respect, there is nothing to prevent discrimination between business partners who are in a relationship of competition from being regarded as being abusive as soon as the behaviour of the undertaking in a dominant position tends, having regard to the whole of the circumstances of the case, to lead to a distortion of competition between those business partners. In such a situation, it cannot be required in addition that proof be adduced of an actual quantifiable deterioration in the competitive position of the business partners taken individually.”

“146 In paragraphs 237 and 238 of the judgment under appeal, the Court of First Instance found that travel agents in the United Kingdom compete intensely with each other, and that that ability to compete depended on two factors, namely 'their ability to provide seats on flights suited to travellers' wishes, at a reasonable cost' and, secondly, their individual financial resources.

147 Moreover, in the part of the judgment under appeal relating to the examination of the fidelity-building effect of the bonus schemes at issue, the Court of First Instance found that the latter could lead to exponential changes in the revenue of travel agents.”

“148 Given that factual situation, the Court of First Instance could, in the context of its examination of the bonus schemes at issue having regard to subparagraph (c) of the second paragraph of Article 82 EC, move directly, without any detailed intermediate stage, to the conclusion that the possibilities for those agents to compete with each other had been affected by the discriminatory conditions for remuneration implemented by BA.

149 The Court of First Instance cannot therefore be accused of an error of law in not verifying, or in verifying only briefly, whether and to what extent those conditions had affected the competitive position of BA's commercial partners. The Court of First Instance was therefore entitled to take the view that the bonus schemes at issue gave rise to a discriminatory effect for the purposes of subparagraph (c) of the second paragraph of Article 82 EC. The second part of the fifth plea is therefore unfounded.”

(ix) Rates - conclusions

(x) The Other Disputed Terms

(a) What licence scope is FRAND – UK or worldwide?

“- first, the tying and tied products are two separate products;

- second, the undertaking concerned is dominant in the market for the tying product;

- third, the undertaking concerned does not give customers a choice to obtain the tying product without the tied product; and

- fourth, the practice in question forecloses competition.”

“434. First, Motorola has not advanced credible arguments as to why, in view of Apple's Second Orange Book Offer, Motorola’s seeking and enforcement of an injunction against Apple in Germany on the basis of the Cudak GPRS SEP was objectively necessary to protect its commercial interests, in particular its right to obtain appropriate remuneration for Apple’s use of its telecommunication SEPs in Germany. With its Second Orange Book Offer, Apple proposed to enter into a licensing agreement with full judicial review and determination of the proposed FRAND royalties with retroactive effect by a court. As regards the scope of the Second Orange Book Offer, as outlined in recitals (125)-(126), it covered all Apple products infringing the licensed SEPs in Germany. Hence, this offer was a clear indication of Apple's willingness to enter into a licensing agreement on FRAND terms and conditions.”

(my emphasis)

“…I can see that the aggregate of individual FRAND rates for patents taken alone and on a territorial basis may well be far more than global portfolio rates and so a rational defendant may well prefer to take a global portfolio licence rather than a series of individual ones. Moreover I accept, as Vringo urges on me, that global portfolio licences are the kinds of licences industry normally enters into.

However this is very different from saying that somehow the fact that a global licence on a portfolio of patents is FRAND necessarily means that a defendant in one jurisdiction faced with one patent is forced to take a global portfolio licence in order to stave off a national injunction on that one patent.

I could see a very different circumstance if Vringo had made a FRAND offer for the patent EP 1,212,919 (UK) itself and that offer had not been accepted. Then an injunction might well follow. In that sort of case, unlike the one based on the global portfolio licence, the threat of the injunction, which is after all a territorial remedy, would not be being used to create some sort of international coercion or coercion about other patent rights.”

[Huawei’s emphasis]

(b) Should the court settle the FRAND terms of a worldwide licence?

(c) FRAND rates in a worldwide licence

(d) Other terms in a worldwide licence

(e) The terms of a UK only portfolio licence

UK only - rate

UK only – other terms

i)                   Royalty base issues:

a)                  Infrastructure revenues;

b)                 End user device revenues;

c)                  Packing, insurance and transport discount;

ii)                 Unlicensed products in the UK;

iii)               Records and audit;

iv)               Licensor indemnities.

Royalty base

Unlicensed products in the UK

Records and audit

Licensor indemnities

Competition law

“Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.”

(i) Dominant position

“239 As noted, the dominant position referred to in Article 102 TFEU relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of consumers.

240 Moreover, the General Court has previously held that in a situation where a supplier controls over 90% of a market, the presence of one or more large customers is not capable of affecting the dominant position of the supplier where the demand side is composed of a number of customers that are not equally strong and which cannot be aggregated.”

“Buyer power may not, however, be considered a sufficiently effective constraint if it only ensures that a particular or limited segment of customers is shielded from the market power of the dominant undertaking.”

The FRAND undertaking

“From a methodological viewpoint obligations flowing from existing regulation, other than the specific regulation imposed on the basis of SMP status in the analysed market, must be taken into consideration when assessing the ability of an undertaking to behave independently of its competitors and customers on that market. In the Commission’s view, this could only be otherwise where it is uncertain whether the regulation concerned will continue to exist throughout the period of the forward-looking assessment.”

Hold-out

“…in view of the large number of SEPs composing a standard such as that at issue in the main proceedings, it is not certain that the infringer of one of those SEPs will necessarily be aware that it is using the teaching of an SEP that is both valid and essential to a standard”

“It was obvious to me that we were being kept in limbo, by design or by inefficient process, by all of the potential licensees we were attempting to negotiate with. They did not want us to litigate, and so they did not refuse to negotiate altogether, but they also did not want to take a license and were deploying every tool available to ensure that no license would be concluded. …

Many potential licensees (some more than others) were seemingly engaging in delay tactics and we realized that it would be very difficult if not impossible to progress beyond technical discussions and to start negotiating the terms of a license without litigation. Where conversations did move beyond technology and into pricing, we were expected to bid against ourselves, receiving very few counter-offers. Those we did receive were derisory and the parties remained poles apart with respect to the rates each thought were FRAND. …”

Conclusion – dominant position

 (ii) Abuse of dominance

i)                   Premature litigation: Huawei v ZTE;

ii)                 Unfair excessive pricing (Art 102(a));

iii)               Bundling / tying in SEPs and non-SEPS;

iv)               Multi-jurisdictional bundling.

(a) Premature litigation: Huawei v ZTE

i)                   alert Huawei to “the infringement complained about by designating that patent and specifying the way in which it has been infringed”;

ii)                 present to Huawei a “specific, written offer” for “a licensing agreement on FRAND terms”; and

iii)               afford Huawei sufficient time diligently to respond to that offer, “in accordance with recognised commercial practices in the field and in good faith”.

“…the proprietor of an SEP which considers that that SEP is the subject of an infringement cannot, without infringing article 102 TFEU, bring an action for a prohibitory injunction or for the recall of products against the alleged infringer without notice or prior consultation with the alleged infringer, even if the SEP has already been used by the alleged infringer.”

(Huawei’s emphasis)

i)                   Huawei had a licence from Ericsson from 2009 which expired at the end of 2012.  That licence included the SEPs which were assigned to Unwired Planet in 2013.

ii)                 In June-August 2013 there was a brief two-way dialogue between Huawei and Unwired Planet (or its proxy Evercore) about Huawei buying some of the SEPs.  Huawei said no thank you.

iii)               After 2013 Huawei knew all they needed to know to appreciate that certain SEPs which they had formerly licensed were now held by a different company and, if and to the extent a licence was required, it would have to come from Unwired Planet or its successors.

iv)               Unwired Planet wrote to Huawei in September 2013.  The letter was to the Board rather than the IP or Licensing Dept. and nothing came of it.  Huawei do not deny the letter was received but conversely Unwired Planet made no effort to follow it up.

v)                 In November 2013 contact was established and some correspondence began. By the end of January 2014 Huawei could reasonably expect the next step in the correspondence to be a letter from Unwired Planet dealing with NDA terms to be followed, after an NDA was agreed, by claim charts.

vi)               On 10^th March 2014 Unwired Planet sued Huawei for patent infringement on five SEPs in the UK and Germany.

vii)             In April 2014 Unwired Planet made it first offer of terms.

“AND THE CLAIMANT CLAIMS:

(1) [a declaration that infringement has taken place]

…

(5) Save insofar as the Defendants and each of them are entitled to and take a licence to the Declared Essential Patents on FRAND terms (in accordance with the Claimant’s undertakings and the ETSI IPR Policy) and insofar as the Claimant is and remains required to grant such a licence:

 a. an injunction to restrain the Defendants and each of them (whether acting by their directors, officers, servants, agents or any of them otherwise howsoever) from infringing the Declared Essential Patents;

b. an order that the Defendants take all steps as are in their power to retrieve from the channels of distribution all products the sale, disposal or keeping of which would infringe the Declared Essential Patents or any of them; and

c. an order for delivery up or destruction upon oath of all articles and materials in the possession, custody or control of the Defendants (or each of them) which infringe the Declared Essential Patents or any of them.

(6) [dissemination of the judgment]

(7) [a damages enquiry]

(10) [costs]

“Regarding the litigation suits I welcome you in my playgrounds, certainly hoping it will not be necessary to waste too much effort but also looking forward to have clearly defined valued of some of your assets, when required”.

Huawei v ZTE

“…Validity and infringement are tried separately in Germany but an injunction can be granted at the end of the infringement trial. The injunction will not normally be stayed unless the Court considers that there is a high probability that the patent will be held invalid, although it is possible for other measures such as appeal to be taken to avoid an immediate injunction.”

i)                   In the judgment the CJEU has set out a scheme which both the patentee and implementer can be expected to follow in the context of a dispute about a patent declared essential to a standard and subject to a FRAND undertaking.

ii)                 In stating that the implementer and patentee must express a willingness to conclude a licence on FRAND terms, the CJEU is referring to a willingness in general terms.  The fact that concrete proposals are also required does not mean it is relevant to ask if those proposals are actually FRAND or not.

iii)               If the patentee complies with the scheme prior to starting a claim for infringement of that patent which includes a claim for an injunction, then bringing such a claim will not be abusive under Art 102.  That is the ratio of the CJEU’s decision.

iv)               In the circumstances contemplated by the CJEU, bringing a claim for infringement of a SEP which includes a claim for an injunction without prior notice of any kind will necessarily be an abuse of dominant position.  Insofar as the decision identifies what is abusive rather than what is not, the decision does not go further than that. 

v)                 Bringing a claim for infringement which includes a claim for an injunction even with sufficient notice is capable of being an abuse of dominant position.  However the judgment does not hold that if the circumstances diverge from the scheme set out in any way then a patentee will necessarily abuse their dominant position by starting such a claim.  In those circumstances the patentee’s conduct may or may not be abusive.  The scheme sets out standard of behaviour against which both parties behaviour can be measured to decide in all the circumstances if an abuse has taken place.  

vi)               Nor does it follow that if the patentee complies with the scheme such that bringing the action is not per se abusive, the patentee can behave with impunity after issue.  Again, the scheme sets out standards of behaviour against which both parties’ behaviour can be measured to decide if an abuse has taken place.

vii)             If the patentee does abuse its dominant position in bringing the claim or in its conduct after issue, that affords a defence to the claim for an injunction.  In other words the proper remedy is likely to be refusal of an injunction even though a patent has been found to be valid and infringed and the implementer has no licence. 

viii)           The legal circumstances of this case differ from the circumstances assumed by the CJEU in a crucial respect.  FRAND is justiciable and the undertaking can be effectively enforced at the suit of the defendant irrespective of Art 102.  The defendant does not need Art 102 to have a defence to the injunction claim.

i)                   How to satisfy the CJEU’s first condition of notice to the alleged infringer and at what time. (Judgment 7 O 66/15 (NTT DoCoMo v HTC) Mannheim Landesgericht, and Judgment 4a O 73/14 (St Lawrence v Deutsche Telecom, HTC and Huawei) in the Düsseldorf Landesgericht).

ii)                 Whether the court has to rule on whether the patentee’s offer has to actually be FRAND. (Judgment 7 O 66/15 (NTT DoCoMo v HTC) Mannheim Landesgericht).

iii)               What happens when the defendant makes a national portfolio offer but the patentee wants a worldwide licence.  (Judgment 7 O 96/14 (Pioneer v Acer) Mannheim Landesgericht; injunction suspended pending appeal by the Karlsruhe Oberlandesgericht 6 U 55/16 and see also Judgment 4a O 73/14).

iv)               The use of comparable licence terms (Judgment 4a O 73/14).

v)                 Whether taking 5 months to respond is reasonable (Judgment 4a O 73/14.

Has Unwired Planet abused its dominant position by bringing this claim?

(b) Unfair excessive pricing (Art 102(a))

“…a fair price is one which represents or reflects the economic value of the product supplied.  A price which significantly exceeds that will be prima facie excessive and unfair..”

(paragraph 204)

“These are plainly abusive levels, which would pose a genuine threat to Huawei’s profitability and competitiveness [referring to evidence from Mr Zhang and Mr Lasinski], advantaging Ericsson not merely (a) from its share of the inflated royalties but also (b) from the adverse impact on Huawei as a competitor in the downstream infrastructure markets; and advantaging Samsung for the reasons explained above.  A significantly supra-FRAND rate, if charged by UWP, would stand to distort competition to the benefit of Ericsson.  Given the low rate which Samsung is now known to be paying, competition would also be distorted in favour of Samsung”

i)                   As at April and July 2014 the information available to Unwired Planet consisted of: the public statements by various companies in the industry such as the ones summarised elsewhere in this judgment, the terms of the MSA, Lenovo, and their own assessments of the value of their patents.  The rates a reasonable person would derive based on that information are much higher than the rates to be derived from the close analysis of the comparable licences which has been done in these proceedings. It was reasonable for Unwired Planet to set its offered rates by reference to that information.  From their subjective point of view, as opening offers in a negotiation in a FRAND framework 0.1% for 2G/3G and 0.2% for 4G were close to what they might reasonably take the view a FRAND rate might be for their SEPs.

ii)                 By June 2015 more information was available to Unwired Planet.  That information allowed one to estimate what the rates in [a licence] were and I am sure a company in Unwired Planet’s position would perform that analysis.  That information does indicate that rates in the industry were lower than one would have thought in April 2014 based on the public statements etc..  So by June 2015 the information available to Unwired Planet showed the 0.1% for 2G/3G and 0.2% for 4G were likely to be well above the FRAND rate by factors similar to the differences I have determined above.

(c) Bundling / tying in SEPs and non-SEPS

“This is an indivisible worldwide arrangement.  The royalty rates sought reflect a blend of the strength, technical diversity and size of the portfolio across the world.  It is not an offer for individual country or technology licenses.  However, Unwired Planet is willing to discuss any such arrangement upon request.”

REMEDIES

(i) Should an injunction be granted?

(ii) Damages

(iv) Declarations

Summary of conclusions

(1)               As a matter of French law the FRAND undertaking to ETSI is a legally enforceable obligation which any implementer can rely on against the patentee.  FRAND is justiciable in an English court and enforceable in that court.

(2)               It is not necessary to rely on competition law to enforce the FRAND undertaking.

(3)               The boundaries of FRAND and competition law are not the same.  A rate may be above the FRAND rate but not contrary to competition law.

(4)               There is only one set of licence terms which are FRAND in a given set of circumstances.  The problem identified in Vringo v ZTE does not exist because there cannot be two sets of terms which are both FRAND in a given set of circumstances.  That way the FRAND undertaking can be enforced.

(5)               The legal effect of the FRAND undertaking relating to a SEP is not that the implementer is already licensed.  Its effect is that an implementer who makes an unqualified commitment to take a licence on FRAND terms (settled in an appropriate way) cannot be the subject of a final injunction to restrain patent infringement.  Whereas an implementer who refuses to take a licence on terms found by the court to be FRAND has chosen to have no licence, and so if they have been found to infringe a valid patent an injunction can be granted against them.

(6)               FRAND characterises the terms of a licence but also refers to the process by which a licence is negotiated.  Although an implementer does not owe a FRAND obligation to ETSI, an implementer who wishes to take advantage of the patentee’s FRAND obligation, must themselves negotiate in a FRAND manner.

(7)               Offers in negotiation which involves rates higher or lower than the FRAND rate but do not disrupt or prejudice the negotiation are legitimate.

(8)               An appropriate way to determine a FRAND royalty is to determine a benchmark rate which is governed by the value of the patentee’s portfolio.  That will be fair, reasonable and generally non-discriminatory.  The rate does not vary depending on the size of the licensee.  It will eliminate hold-up and hold-out.  Small new entrants are entitled to pay a royalty based on the same benchmark as established large entities. 

(9)               The non-discrimination limb of FRAND does not consist of a further “hard edged” component which would justify a licensee demanding a lower rate than the benchmark rate because that lower rate had in fact been given to a different but similarly situated licensee.  If FRAND does include such a component, then that obligation would only apply if the difference would distort competition between the two licensees.

(10)           A FRAND rate can be determined by using comparable licences if they are available.  Freely negotiated licences are relevant evidence of what may be FRAND.  A top down approach can also be used in which the rate is set by determining the patentee’s share of Relevant SEPs and applying that to the total aggregate royalty for a standard but this may be more useful as a cross-check.

(11)           In assessing a FRAND rate counting patents is inevitable.

(12)           In assessing the dominant position of a SEP holder, the practical effect of the FRAND undertaking and the potential for hold out by an implementer are relevant factors and may lead to the conclusion that a SEP holder is not in a dominant position.

(13)           The principles to be derived from the decision of the CJEU in Huawei v ZTE are summarised at paragraph 744 above.

(1)               None of Unwired Planet’s offers (April 2014, June 2014, June 2015 or August 2016) were FRAND.

(2)               None of Huawei’s offers (June 2015, August or October 2016) were FRAND.

(3)               The Revised MNPA overstates the value of Unwired Planet’s SEP portfolio.  The HPA understates the value of that portfolio. 

(4)               The value R for the relative strength of Unwired Planet’s portfolio as compared to Ericsson’s for 4G is 7.69%.  The values of R for 2G, 3G, and 4G range from 2.38% to 9.52%. 

(5)               The value S for Unwired Planet’s share of all SEPs relevant to 4G handsets is 0.70%.  The values of S for 2G, 3G, and 4G for infrastructure and handsets range from 0.21% to 1.30%.  Here and below handsets refers to multimode. 

(6)               None of: the 2014 Unwired Planet-Lenovo licence, the 2016 Unwired Planet-Samsung licence, or the 2016 Ericsson-Huawei licence, are good comparables.  The Ericsson-Samsung 2014 licence is the best place to start but other Ericsson licences are relevant. 

(7)               The right number E to use as a royalty rate which measures the value of Ericsson’s 4G SEPs in order to scale against Unwired Planet is 0.80% for 4G.  The value E for Ericsson’s 2G and 3G SEPs is 0.67%.

(8)               The benchmark FRAND rates for Unwired Planet’s portfolio are:

a)                  4G/LTE: 0.062% for handsets, and 0.072% for infrastructure;

b)                 3G/UMTS: 0.032% for handsets, and 0.016% for infrastructure;

c)                  2G/GSM: 0.064% for handsets, and 0.064% for infrastructure;

(9)               As a cross-check, the value T for the total aggregate royalty burden implied by these rates for 4G handsets is 8.8%.  The values of T for 2G, 3G, and 4G for infrastructure and handsets range from 3.1% to 8.8%.

(10)           The fact the 2016 Unwired Planet-Samsung licence is not a good comparable does not mean it is irrelevant for hard-edged non-discrimination if that concept is applicable to FRAND.  However applying the non-discrimination aspect of FRAND to that licence does not justify setting a lower rate for Huawei than the benchmark rates because a distortion of competition between Huawei and Samsung was not established.

(11)           A UK portfolio licence is not FRAND.  The FRAND licence between Unwired Planet and Huawei is a worldwide licence. 

(12)           In a FRAND worldwide licence the rates for China would be substantially lower than the benchmark rates.  The rest of the world outside China would be divided into Major Markets (MM) and Other Markets (OM).  The OM rates would be the same as the China rates because that is where the goods are made. 

(13)           The rates in a worldwide licence would be:

(14)           The detailed terms of a worldwide licence have been settled. They are FRAND.

(15)           In a UK portfolio licence the uplift on the rates relative to the benchmark would be 100%. 

(16)           If a proper economic analysis had been done the answer might be different but in this case, as the holder of SEPs, Unwired Planet is in a dominant position.

(17)           Unwired Planet did not abuse their dominant position by issuing these proceedings for an injunction prematurely, by maintaining a claim for an injunction in these proceedings, by seeking to insist on a worldwide licence, by attempting to impose unfair prices or by bundling SEPs and non-SEPs.

(18)           Since Unwired Planet have established that Huawei have infringed valid patents EP (UK) 2 229 744 and EP (UK) 1 230 818, and since Huawei have not been prepared to take a licence on the terms I have found to be FRAND, and since Unwired Planet are not in breach of competition law, a final injunction to restrain infringement of these two patents by Huawei should be granted.

(19)           If Unwired Planet had issued these proceedings prematurely, in the circumstances as they now are, refusal of an injunction would have been disproportionate.

(20)           The final injunction will be considered at a hearing in a few weeks’ time once Unwired Planet have drawn up a full set of the terms of the worldwide licence incorporating the decisions made in this judgment.

(21)           To the extent damages should be awarded, they would be at the same rate as the appropriate FRAND rate.