No Bad Faith in Pressing for Preferred FRAND Forum Absent Legitimate Objection: ‘First Seised’ Not Determinative and Interim Licences Should Be Jurisdiction‑Neutral

Case: Samsung Electronics Co. Ltd & Anor v ZTE Corporation & Ors [2025] EWCA Civ 1383

Court: England and Wales Court of Appeal (Civil Division)

Date: 31 October 2025

Introduction

This appeal sits at the crossroads of international FRAND jurisprudence, addressing whether it is bad faith for a standard-essential patent (SEP) owner to deploy multi-jurisdictional infringement litigation to pressure an implementer into accepting the SEP owner’s preferred forum for FRAND determination. The twist is unusual: unlike earlier English Court of Appeal decisions concerning interim licences, both sides here agreed in principle on an interim cross-licence and on the price to be paid for the interim period; they disagreed only about which court’s eventual FRAND terms should set the adjustment—England’s Patents Court or the Chongqing Intermediate People’s Court in China.

Samsung commenced English proceedings seeking, among other relief, a declaration that a willing licensor would grant an interim cross-licence pending an English final FRAND determination. ZTE, while agreeing to an interim licence and the payment quantum, insisted that any adjustment be tethered to the Chinese FRAND determination. Mellor J held that ZTE acted in bad faith by using a wave of injunction-seeking actions in Brazil, Germany, the UPC and Hangzhou to force Samsung to accept a Chongqing forum and granted declarations favouring English adjustment. The Court of Appeal (Arnold LJ giving the lead judgment, with Birss LJ and Peter Jackson LJ concurring) allowed ZTE’s appeal, recasting the limits of “bad faith” in FRAND forum disputes and offering important guidance on how interim licences should be framed.

The decision clarifies three core points of principle: (1) absent a legitimate and substantiated objection to the alternative forum, it is not bad faith for a SEP owner to push for its preferred FRAND forum, even through legitimate litigation pressure; (2) the “first seised” status of one court is not determinative (at most, a possible tie-breaker); and (3) interim licence mechanisms should, in most cases, be crafted in a jurisdiction‑neutral way, such that interim payments or security can be credited against the eventual global licence, regardless of which competent forum sets the final FRAND terms.

Summary of the Judgment

The Court of Appeal allowed ZTE’s appeal. It held that, unless there is a legitimate, substantiated objection to a forum, it is not “bad faith” for a SEP owner to seek to induce the implementer—through otherwise lawful proceedings—to accept FRAND determination by that forum (paras 70–74).
The Court rejected the notion that the English courts being “first seised” of the FRAND dispute makes bad faith out of ZTE’s insistence on Chongqing. “First seised” is not a trump card and, in the absence of international rules mandating deference, cannot ground a finding of bad faith (paras 69, 74).
The Court emphasized comity concerns where interim declarations are designed to “force” a party to abandon proceedings in another competent court (para 78), and preferred a jurisdiction‑neutral approach to interim licences (Birss LJ at paras 84–86).
Declarations (1), (3), and (4), which depended on findings of bad faith and compelled English adjustment, are to be set aside. The Court invited submissions on whether the jurisdiction‑neutral declaration (2)—reflecting the parties’ agreement on entering an interim licence at a confidential price—should stand (para 79).
Birss LJ distilled a practical approach: interim arrangements should generally be limited to setting appropriate financial terms pending final resolution, with payments or security credited in the final licence irrespective of the forum that ultimately sets it (paras 84–86).

Analysis

Precedents Cited and Their Influence

Panasonic Holdings v Xiaomi [2024] EWCA Civ 1143; Alcatel Lucent v Amazon [2025] EWCA Civ 43; Lenovo v Ericsson [2025] EWCA Civ 182:
These decisions recognized the Court’s power to declare that a willing licensor would grant an interim licence and articulated a framework for when such declarations serve a legitimate purpose. Crucially, in Panasonic and Lenovo, “bad faith” flowed from patentees using injunctive leverage to extract supra‑FRAND terms or avoid any FRAND determination at all. The present case departs from that pattern: both parties here accept interim licensing and global FRAND determination—just not in the same forum. The Court of Appeal emphasizes that this case involves forum preference rather than supra‑FRAND coercion (paras 57–58).
Nokia Technologies v OnePlus (OPPO) [2022] EWCA Civ 947:
Arnold LJ’s own earlier analysis foreshadowed the systemic risk of parallel FRAND determinations and inconsistent outcomes in the absence of a supranational mechanism (paras 11–13, 67, 74). This judgment engages those realities directly, rejecting the idea that “first seised” status resolves the problem and signalling that forum races are, regrettably, an inherent consequence absent arbitration or an international jurisdictional regime.
Huawei v ZTE (CJEU, C‑170/13) [2015]:
Birss LJ grounds the interim licence concept in Huawei v ZTE’s recognition that an implementer may be required to provide security or payment pending final resolution (paras 84–85). The appellate court builds on this to encourage jurisdiction‑neutral interim solutions that preserve market access while FRAND is set elsewhere.
Altimo Holdings v Kyrgyz Mobil [2011] UKPC 7:
Applied to insist on “crystal clear” allegations backed by cogent evidence when impugning the fairness or bias of foreign courts (para 42). Samsung mounted no substantiated attack on the competence or fairness of the Chongqing Court; the Judge below rejected those criticisms, and no appeal was taken (paras 42, 61–62, 72).
Lifestyle Equities v Amazon [2024] UKSC 8; Iconix v Dream Pairs [2025] UKSC 25:
Cited for appellate restraint regarding evaluative findings (para 56), but here the Court confronted a point of principle—what counts as “bad faith” in forum contests—justifying its intervention.
Brussels I Recast (Regulation 1215/2012):
Used illustratively to show that home‑forum litigation is not inherently objectionable in private international law; a party’s home courts can be a proper forum, even if not determinative in the FRAND context (para 63).

Legal Reasoning

The core principle: forum leverage versus supra‑FRAND leverage
The Court draws a bright line between (a) leveraging injunctions to compel supra‑FRAND concessions or to avoid any court’s FRAND determination (bad faith: Panasonic, Lenovo) and (b) leveraging lawful proceedings to pursue one’s preferred forum where both fora are competent and there is no substantiated legitimacy objection (not bad faith: Samsung v ZTE). In short, forum preference—without more—is not bad faith (paras 57–74).
“First seised” is not a trump card
Although “first seised” may be a pragmatic tie‑breaker (para 119), treating it as determinative would amplify forum racing and is not compelled by any international rule (paras 74–75). The Court resists converting “first seised” into a quasi‑jurisdictional norm that can ground findings of bad faith against the other party.
No substantiated objection to Chongqing
Samsung did not advance, and the Judge did not find, any cogent basis to impugn Chongqing as an incompetent or unfair forum. On the contrary, criticisms were not pursued on appeal, and the challenge to personal jurisdiction failed in China (paras 61–62, 66, 72). In that setting, ZTE’s insistence on Chinese determination was legitimate advocacy, not bad faith (paras 70–74).
Comity and proportionality
The Court flags comity concerns where declarations are engineered to “force” a party away from a foreign forum already seised and competent (para 78). Birss LJ underscores that interim devices should not be turned into tools of forum compulsion (para 87). Even if some response to sharp conduct is justified, relief must be carefully tailored to avoid creating international friction.
The proper shape of interim licences
Birss LJ articulates a practical model: courts may set neutral, interim financial terms or security to keep products in the market and evidence willingness, with sums later credited under whichever competent forum sets the global licence (paras 84–86). This helps avoid weaponising interim relief to pre‑judge the ultimate forum issue.
Arbitration as the superior path
Echoing prior judicial commentary, the Court laments the absence of a supranational FRAND mechanism and encourages arbitration where possible (paras 11–13, 39). It even floats the possibility (for another day) of a court declaration to help break deadlocks on arbitral terms (para 39).
Respondents’ notice rejected
- Neutrality by analogy to arbitration: While arbitral practice prefers neutral nationalities, this does not transplant into litigation such that a party is barred from choosing its home forum, especially where both fora are competent (paras 62–63).
- “Forum non conveniens by the back door”: Accepting English jurisdiction does not compel a party to pre‑commit to English FRAND terms for adjustment in an interim licence. ZTE’s stance did not amount to a concealed stay application (para 65).

Impact and Prospective Significance

1) Recalibrating “bad faith” in FRAND forum disputes

The decision narrows the reach of “bad faith” as a tool to police forum preference. Unless a party can substantiate an objection to the rival forum (e.g., credible concerns about competence, fairness, or jurisdiction), the use of legitimate infringement actions to press for that forum will not be condemned as bad faith. This materially distinguishes the current case from earlier “hold-up” scenarios and reduces the circumstances in which English courts will deploy declaratory relief to channel parties into the English forum.

2) ‘First seised’ is only a tie‑breaker

Litigants can no longer expect the English “first seised” status to be determinative. This may embolden pre‑emptive filings in multiple fora and entrench parallel FRAND determinations, sharpening the need for party‑led solutions (arbitration or bespoke standstills) and for courts to exercise sensitive case management to avoid duplication and inconsistency.

3) Jurisdiction‑neutral interim licences as best practice

The Court’s endorsement of jurisdiction‑neutral, creditable interim payments provides a practical template. In future:

Interim licences should avoid locking parties into a forum for final adjustment.
Payments or security can be expressly credited against whatever global licence emerges, whether set by London, Chongqing, the UPC, or arbitration.
Such neutrality mitigates comity concerns and deprives parties of arguments that interim mechanisms are being weaponised for forum control.

4) Greater weight on arbitration and consensual frameworks

The judgment powerfully nudges parties toward arbitration when forum contestation is irreconcilable. The Court even hints that declaratory assistance on arbitral terms might be sought to break stalemates. Expect more granular, pre‑negotiated arbitration clauses in SEP cross‑licences and more frequent resort to neutral, internationally acceptable arbitral rules and seats.

5) Comity-sensitive relief and graduated responses

Relief calibrated to avoid pressuring abandonment of foreign proceedings is now the default. Where conduct truly is in bad faith, remedies may still be granted, but courts will prefer proportionate, non‑coercive declarations (e.g., setting neutral interim financial terms) over jurisdiction-specific mandates.

6) Strategic consequences

Forum races will continue; “first seised” will not immunise a party from competing FRAND determinations.
Anti-suit injunctions remain a possible—but exceptional—remedy where a forum is legitimately and substantively objectionable (para 71). This judgment does not endorse their use absent such objection.
Implementers and SEP owners should craft standstills that preserve neutrality and allow one forum to proceed without compelling abandonment of the other, or agree to arbitration.

Complex Concepts Simplified

Standard-Essential Patents (SEPs):
Patents that are necessarily used to implement a technical standard (e.g., 4G/5G). Because implementers must use them to be compliant, SEP owners commit to license them on FRAND terms through ETSI’s IPR Policy.
FRAND (Fair, Reasonable, and Non‑Discriminatory):
The licensing standard SEP owners must follow to ensure access to standards on balanced terms. Disputes often centre on what rates and conditions satisfy FRAND across global portfolios.
Implementer vs. SEP Owner:
The implementer uses the standard (e.g., handset maker). The SEP owner holds patents essential to that standard. Here, Samsung was the net payer, placing it in the implementer’s role for purposes of this appeal.
Willing licensee/licensor:
A party genuinely prepared to enter a FRAND licence, often evidenced by an undertaking to accept court-determined FRAND terms and to pay from “day one” (para 4).
Interim licence:
A temporary licensing arrangement—often involving payments or security—allowing continued market access pending a final FRAND determination. The Court favours jurisdiction‑neutral interim licences that can be credited against any final global licence (paras 84–86, 79).
“First seised”:
The idea that the court first seized of a dispute should proceed. Useful as a tie‑breaker but not determinative in FRAND forum conflicts (paras 69, 74).
Comity:
Respect for foreign courts. Relief designed to force abandonment of a competent foreign forum risks comity concerns (para 78).
Anti-suit injunction:
An order restraining a party from starting or continuing foreign proceedings. The Court suggests it might be available where there is a substantiated objection to the foreign forum (para 71) but was not sought here.
Forum shopping:
Choosing a forum perceived as favourable. The Court accepts its inevitability in FRAND disputes absent a supranational mechanism but cautions against treating “first seised” as determinative (para 74).

Practical Notes for Litigants and Counsel

When seeking interim relief, propose jurisdiction‑neutral terms: precise interim payments or security, explicit crediting across any future global licence, and neutral wording permitting any competent court or tribunal to take the interim terms into account.
Avoid predicates that compel the other party to accept your preferred forum as part of an interim licence; such predicates risk comity concerns and may be set aside.
If alleging bad faith based on foreign forum selection, adduce cogent expert evidence demonstrating a legitimate and substantiated objection to that forum (e.g., procedural unfairness, jurisdictional defect). Mere preference is insufficient.
Use “first seised” as advocacy leverage, not as a legal trump. Be prepared to manage the risk of parallel proceedings and inconsistent determinations.
Consider early, concrete, and neutral offers to arbitrate with agreed rules, seat, and arbitrator nationalities. The Court’s dicta strengthen the case for arbitration where forum deadlocks persist.

Conclusion

Samsung v ZTE refines the boundaries of “bad faith” in the FRAND arena. The Court of Appeal confirms that pressing for one’s preferred FRAND forum—even via the pressure of legitimate injunction proceedings—does not in itself constitute bad faith where the rival forum is competent and no substantiated objection is made. It also decisively downgrades the role of “first seised” from a purported trump to a possible tie‑breaker and warns against relief that steers parties toward one forum at the expense of comity.

The judgment’s enduring contribution will likely be Birss LJ’s pragmatic guidance on interim licences: keep them simple, financial, and jurisdiction‑neutral. In a world of parallel FRAND proceedings without a supranational solver, neutrality in interim arrangements is the best available instrument to preserve market continuity, evidence “willingness,” and respect international comity—while leaving the ultimate forum choice to be resolved by party agreement, arbitration, or case-specific judicial determinations.