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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> TP-Link Systems Inc & Anor v Huawei Technologies Co Ltd [2026] EWHC 179 (Pat) (30 January 2026) URL: https://www.bailii.org/ew/cases/EWHC/Patents/2026/179.html Cite as: [2026] EWHC 179 (Pat) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
____________________
| (1) TP-LINK SYSTEMS INC. (a company incorporated under the laws of the State of California) (2) TP-LINK UK LIMITED (a company incorporated under the laws of the United Kingdom) |
Claimants |
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| - and - |
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| HUAWEI TECHNOLOGIES CO., LTD (a company incorporated under the laws of China) |
Defendant |
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2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
MARK CHACKSFIELD KC and EDWARD CRONAN (instructed by Bird & Bird LLP) for the Defendant
Hearing date: 13 January 2026
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Crown Copyright ©
MR. JUSTICE MEADE:
The litigation situation
The parties' positions
Applicable legal principles
"6. The Court considered that the grant of the declaration would serve a useful purpose because it would be persuasive, albeit not coercive. It would not be contrary to comity because, if it led to an interim licence being agreed, it would relieve the foreign courts of burdensome and wasteful litigation; and, if not, it would be up to the foreign courts to make their own assessments of the parties' conduct. As to what terms for an interim licence would be FRAND, in both Panasonic v Xiaomi and Lenovo v Ericsson the Court essentially took a midpoint between the parties' most recent royalty rate offers and applied that rate to the anticipated period of the interim licence. (This does not exclude the possibility of another solution in an appropriate case.)"
"75. As Amazon submit, Panasonic v Xiaomi demonstrates that the judge's reasoning was based on an incorrect premise: Amazon's claim to an interim licence would not lead to two RAND trials of the same scope. The RAND trial which the judge directed to be tried in October 2025 will involve a full Investigation of all issues relating to RAND. It will undoubtedly be a substantial trial, and it is presently estimated that it will require 20 days of court time. By contrast, Amazon's application for an interim licence will not require the court to determine most of the issues which will arise at the RAND trial. It will simply require the Court to determine (1) whether Amazon are entitled to an interim licence and (2) if so, what terms are appropriate. As can be seen from Panasonic v Xiaomi, the question of what terms are (F)RAND for an interim licence is quite different to the question of what terms are (F)RAND for a final licence, and determining such terms is a much more limited task. As Amazon submit, this is because the interim licence is only designed to hold the ring pending determination of the terms of the final licence, and the payments made pursuant to it will be adjusted to the extent necessary in consequence of the determination of the terms of the final licence."
"48. Of particular relevance in the present case is that, pursuant to Article 20 EPCU, the UPC must give priority to the enforcement of European law. This is only possible if the proceedings concerning a standard-essential patent are conducted in compliance with the EU antitrust law applicable in the present case within the meaning of Articles 101 and 102 TFEU and any questions requiring clarification can be referred to the ECJ pursuant to Article 267 TFEU. These questions also include the question of whether the enforcement of prohibition rights under SEP is in conformity with EU antitrust law. This addresses a central area of regulation of patent law applicable to the EU internal market. One of the questions to be decided is whether, in negotiations for a FRAND license and in calculating its amount and the factors to be applied for this purpose, which are used in a comparison with third-party licenses in order to establish comparability, the SEP proprietor applies criteria that comply with antitrust law. Conversely, the Declaration may result in the SEP proprietor being de facto forced to accept an offer (at least for the time being) that is at the lower end of the FRAND corridor or, depending on the amount of the implementer's offer, even outside it. This question must also be answered in the context of EU antitrust law. If an EU court, in this case the UPC, were prevented from conducting this review, this could result in courts not bound by EU law making determinations on (F)RAND licenses that cannot be legally upheld in the European single market and may even be contrary to public policy. This is particularly to be feared in the present case because the granting of an interim license is not preceded by an examination of whether the competing offers are FRAND-compliant or not. If, therefore, the appropriate interim license rate is simply set at the midpoint between the competing offers, this may result in the determination falling outside the corridor of EU law. It is true that the actual FRAND compliance can be determined subsequently. However, the UK courts do not aim to do this, but consider it desirable for the parties to reach a settlement under the pressure of the interim license. In this case, the amount specified in the interim license may become a reference point in further negotiations that is contrary to EU antitrust law. Incidentally, it also seems doubtful whether this approach will encourage the parties to negotiate more rationally in the future. Rather, it could lead to the exact opposite, with both parties making even more difficult-to-bridge maximum demands in order to have the most favorable starting point possible for further negotiations when overcoming their differences."
"Moreover, I have also taken the approach that, in cases in which I have found there to be a good arguable case against a Defendant, it is best not then to give any much more detailed analysis of the strengths and weaknesses of the case made against that Defendant, unless necessary to deal with the position of another Defendant. Any such analysis would be likely to be overtaken by what will emerge during the course of the case and/or, as it was put by Knox J in In Re a Company 005009 of 1987 [1988] 4 BCC 424, be such as 'merely [to] embarrass the judge who will have to determine the question at the trial'. That was said in the context of a strike out, and the relevant considerations are not identical, but it nevertheless appears to me to be apt in the present context, and to be, as was said by Lloyd J in Bank of America Trust v Morris (22 October 1988), 'wise guidance'."
Standard of proof
Past sales
"23. This Court held in InterDigital v Lenovo that limitation provisions under national law had no role to play in the determination of what terms were FRAND, and thus royalties should be paid in respect of the whole period during which the implementer has been exploiting the SEP holder's portfolio. Among the reasons I gave for reaching that conclusion were the following:
'187. … An implementer … requires a licence from the first day it implements the relevant standard(s). FRAND terms are the terms that would be agreed between a willing licensor not intent upon hold up and a willing licensee not intent upon hold out. The ETSI Guide and FAQs page make it clear that a willing licensee would not sit back and wait for demands from SEP owners, but would pro-actively contact SEP owners (whose identities can readily be ascertained from ETSI), and would put money aside for the payment of royalties … It follows that, in an ideal world, the parties should be able to agree terms not long after the implementer has started implementing the standard, or at all events before the expiry of six years from that date. Recognising that the world is not ideal, a willing licensor and a willing licensee would begin by negotiating a standstill agreement in order to ensure that the passage of time during the course of negotiations did not affect the substantive terms ultimately agreed. On that basis, the relevant date for the purpose of determining what terms were FRAND would at the latest be the date of first contact between the parties …
188. Furthermore, as the Supreme Court held in UPSC at [105]–[127] …, FRAND terms reflect the value of the SEPs in the portfolio and must be available to any market participant. It follows … that they should not depend on the date on when the licence is entered into. There should be no discrimination in favour of implementers who are slow to take a licence and against implementers who are quick to take a licence. If anything, it should be the other way around.'
24. This Court also held in InterDigital v Lenovo that FRAND terms required the payment of interest by the implementer in respect of past sales in order to reflect the time value of money. In that case the Court upheld the judge's decision that the appropriate interest rate was 4% compounded quarterly."
How far forward
Interest and escrow
Mid-point approach or TP-Link's Unpacking Analysis
The amount