Summary of Judgment

Factual and Procedural Background

This is an appeal from the High Court, Business and Property Courts (Patents Court) (Judge Mellor) concerning offers of licences ("Adjustable Licence Offers") made by Company E in respect of its SEP codec portfolio and related case management orders. Company A and Company B, and separately Company C and Company D, were Claimants/Respondents in proceedings in which Company E was Defendant/Appellant. On 12 May 2026 this Court delivered a principal judgment ([2026] EWCA Civ 564) dismissing Company E's appeal on jurisdiction but allowing Company E's appeal in relation to a case management stay. The present, further judgment resolves consequential issues arising from that principal judgment, principally whether a particular licence term (the "disputed term") in Company E's Adjustable Licence Offers is (F)RAND and whether the case management stay should be conditional on its removal. The Court also addressed whether declaratory relief should be granted, the placement of specified conditions (in the licence or the Court order), permission to appeal to the Supreme Court, and the timetable for resolving costs and drafting points.

Legal Issues Presented

1. Whether the "disputed term" in Company E's Adjustable Licence Offers—permitting contention that the arbitration should include terms of a (F)RAND cross-licence covering any patents the other party or its group owns, controls or manages, and requiring stay/withdrawal/abandonment of litigation concerning such patents—is (F)RAND.
2. Whether this Court may summarily determine that the disputed term is (F)RAND when Company E contends such matters should be decided by arbitrators.
3. Whether the case management stay granted on the principal judgment should be made conditional upon Company E excising the disputed term from the Adjustable Licence Offers.
4. Whether declaratory relief (that the Adjustable Licence Offers are RAND and that Company E has complied with its RAND obligations) is appropriate in these proceedings.
5. Whether specified conditions should be incorporated into the Adjustable Licence Offers or into the Court's order granting the case management stay.
6. Whether permission to appeal to the Supreme Court should be granted to the Claimants.

Arguments of the Parties

Claimants' Arguments

• The disputed term may prevent the Claimants and associated parties from enforcing SEPs concerning mobile telephony standards until arbitrators determine the scope of a cross-licence.
• The case management stay should be conditional on Company E removing the disputed term from the Adjustable Licence Offers.
• Conditions intended to ensure arbitration picks up where English proceedings leave off should be reflected in the Court's order to reduce satellite litigation and preserve procedural continuity.
• Sought permission to appeal to the Supreme Court (contingent upon certain outcomes).

Company E's (Appellant's) Arguments

• Procedurally, the Claimants could not rely on the disputed term to uphold the judge's order, and Company E argued that whether the disputed term should be included is for arbitrators to decide, not for summary determination by this Court.
• Company E contended the question whether the final licence should be one-way or a cross-licence, and the extent of any cross-licence, is for the arbitrators.
• Company E sought declarations that the Adjustable Licence Offers are RAND and that it has complied with its RAND obligations.
• Company E argued that the conditions in paragraph 92 of the principal judgment should be incorporated into the Adjustable Licence Offers and that the arbitrators' normal case management powers should be preserved.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2026] EWCA Civ 564	Principal appellate disposition: dismissed Company E's appeal on jurisdiction but allowed Company E's appeal in relation to the case management stay; also contains analysis (paras cited) on procedural and substantive points including that a SEP owner may choose between arbitration and court proceedings for determining (F)RAND terms.	The Court relied on that principal judgment as the starting point for addressing consequential issues, including paragraph references concerning the parties' procedural positions and the proposition that a SEP owner can choose arbitration or court proceedings (paras 85–88 of the main judgment as cited).
[2025] EHWC 3331 (Pat)	Source High Court decision (Mr Justice Mellor) from which the appeal arose.	Identified as the appeal's originating decision; the Court resolved issues in the light of the principal judgment on appeal from that decision.

Court's Reasoning and Analysis

The Court began by noting its practice of inviting parties to agree consequential orders and, where necessary, deciding outstanding points on paper. The Court addressed first whether the disputed term, raised during oral argument below and described in the judgment, could properly be dealt with as a condition to the case management stay.

The Court accepted that, for procedural reasons, the Claimants could not rely on the disputed term to uphold the judge's original order dismissing Company E's application for a case management stay. However, the Court held that whether the disputed term should be included in the Adjustable Licences if Company E were otherwise successful on appeal was a separate question which this Court could determine.

Disregarding the disputed term, the Court found that Company E's Adjustable Licence Offers were offers of licences of the Nokia Codec SEP Portfolio on RAND terms capable of acceptance; consequently, non-acceptance would render the Claimants unwilling licensees unable to invoke the English courts' declaratory jurisdiction to determine RAND terms.

The Claimants indicated willingness to accept the Adjustable Licence Offers except for the disputed term; they asked Company E to remove it, which Company E refused. The Claimants therefore asked that the case management stay be made conditional on excision of the disputed term.

Company E argued that the scope and form of any cross-licence should be for arbitrators to decide. The Court rejected that contention, reasoning (i) Company E had advanced that this Court could summarily determine that the Adjustable Licence Offers were RAND and the Court accepted that position; the Court was therefore equally able to determine whether the disputed term was RAND; (ii) the Court concluded the disputed term is not RAND because it would have the effect of compelling the implementer to submit disputes about cross-licence terms to arbitration, whereas Company E's own accepted position (in the principal judgment) is that a SEP owner is entitled to choose between arbitration and court proceedings for determining (F)RAND terms; that choice, for SEPs owned or controlled by the Claimants, therefore lies with the Claimants and not with Company E; and (iii) it was not arguable that Company E's RAND obligation could be made conditional upon the implementer's willingness to submit to arbitration disputes over cross-licences covering SEPs in different technical areas governed by different SDOs and laws.

The Court agreed with the Claimants that conditions in paragraph 92 of the principal judgment—designed to align arbitration with the English proceedings and reduce satellite litigation—should be included in the Court's order granting the case management stay rather than being incorporated into the Adjustable Licence Offers. The Court also clarified that the conditions were without prejudice to the arbitrators' normal case management powers.

The Court further held that declaratory relief was inappropriate in the present posture because Company E had sought a case management stay rather than summary judgment. The Court refused the Claimants' contingent application for permission to appeal to the Supreme Court and directed parties to attempt agreement on costs and minor drafting points by specified deadlines.

Holding and Implications

Core Ruling: The Court held that the disputed term in Company E's Adjustable Licence Offers is not (F)RAND and that the case management stay should be conditional on Company E excising that disputed term from its offers. The Court declined to grant declaratory relief that the Adjustable Licence Offers are RAND or that Company E has complied with its RAND obligations in the context of the case management stay application.

Implications:

• Direct effect: Company E's appeal was allowed in relation to the case management stay subject to the removal of the disputed term; the Claimants may accept the Adjustable Licence Offers absent the disputed term and arbitrate remaining RAND terms; if the Claimants do not accept, they remain unwilling licensees and cannot obtain declaratory relief in these proceedings.
• Procedural effect: Conditions in paragraph 92 of the principal judgment should be included in the Court's order granting the stay (not in the licences), and the arbitrators' case management powers are preserved.
• No broader new precedent beyond the decision on the disputed term and the application of the Court's established approach to summary determination and case management stays was indicated; permission to appeal to the Supreme Court was refused.