Itโs been a busy few weeks for SEP/FRAND cases in the UK.ย The Supreme Court is now going to hear its first SEP/FRAND case since ๐๐๐ค๐๐๐๐ ๐๐๐๐๐๐ก, granting Tesla permission to appeal in its dispute with Avanci and InterDigital concerning the UK courtโs jurisdiction to make FRAND declarations in relation to a licensing pool (the Avanci 5G Platform).
The dispute started in December 2023, with Tesla commencing proceedings seeking, amongst other things, a declaration of FRAND terms for a licence of the UK SEPs in the Avanci 5G Platform or, alternatively, to the InterDigital UK SEPs within that pool.ย In other words, Tesla are seeking a determination of a FRAND licence ๐จ๐ง ๐ญ๐ก๐ ๐ญ๐๐ซ๐ฆ๐ฌ ๐จ๐ ๐ ๐ฉ๐๐ญ๐๐ง๐ญ ๐ฉ๐จ๐จ๐ฅ (the Avanci 5G Platform).
This differs from other SEP/FRAND disputes, which all concern bilateral licences between two parties.ย Related to this is that, as administrator of the pool, Avanci themselves do not own any of the SEPs in the pool.ย Tesla have pleaded that they have legal rights (the FRAND obligations owed by SEP holders under the ETSI IPR policy) against each of the individual members of the Avanci platform but have stopped short of pleading that they have legal rights enforceable against Avanci themselves.ย This has raised questions on whether the grant of a declaration (here, the terms of a FRAND licence) concerning a legal right requires the defendant (Avanci) to be the owner of or subject to the legal right relied on.
Following jurisdictional challenges, the High Court set aside (i.e. removed) Teslaโs permission to serve its claim form on the US-based entities of InterDigital and Avanci.ย It is this jurisdictional challenge that is being appealed to the Supreme Court and so it is important to note the Supreme Court will ๐ง๐จ๐ญ be ruling on Teslaโs arguments as such โ only on whether they have a โreal prospectโ of succeeding with their case and so have permission to serve their claim form reinstated.ย ย If Tesla succeed on this, their pleaded case will be heard before the High Court.ย All eyes will then be on that case to see if Tesla succeed with their arguments concerning FRAND licensing terms in relation to patent pools.
