The Dispute
Acer and ASUS, implementers of the H.264/H.265 video coding standards, asked the English court to set global RAND terms for Nokia’s standard-essential patents and to grant interim licences. Nokia countered with an “Adjustable Licence” under which final terms would be set by an ICC arbitral tribunal, and sought a stay.
Practical Point
An offer of a licence whose final terms are set by ICC arbitration can be RAND; offering arbitration does not offend consensuality, and an implementer who refuses cannot invoke the court's rate-setting jurisdiction.
Consequence: Permanent case management stay of the RAND claims granted; interim licence declarations discharged. A RAND-compliant arbitration offer gives SEP owners a route around court rate-setting, with a single tribunal, New York Convention enforceability and ICC transparency weighing in its favour.
Lord Justice Peter Jackson; Lord Justice Arnold; Lord Justice Zacaroli. Judgment given by Lord Justice Arnold.
Authorities applied: Huawei v ZTE (CJEU); Unwired Planet v Huawei; Alcatel Lucent v Amazon; Samsung v ZTE.
On appeal from Mellor J, Patents Court, [2025] EWHC 3331 (Pat), 18 December 2025.
By a follow-on judgment of 18 May 2026 ([2026] EWCA Civ 604), one term of the offer (extending arbitration to cross-licences of other patents) was held not RAND, and the stay was made conditional on its removal.
Paragraphs: 63-92 · Read the judgment →
