SEP litigation has never been for the faint of heart, but the WIPO Seminar on SEPs and Dispute Resolution, held in Geneva in October 2026, highlighted how dynamic the landscape has become. The panel featured Judge Weike Du (Supreme People’s Court of China), Justice James Mellor (UK High Court), Judge Oliver Schön (Munich Regional Court), and Judge James V. Selna (C.D. Cal.).
The clearest disagreement: willingness or price first?
While all judges agreed that assessing FRAND country by country is practically unworkable in today’s globalized market, they disagreed on how to sequence a FRAND defense.
The Munich approach, outlined by Judge Schön, places substantial emphasis on the implementer’s conduct. Has it negotiated seriously? Has it paid an undisputed amount? Has it provided appropriate security? An implementer that fails to demonstrate willingness risks an injunction. Only after these boxes are checked does the court move toward the royalty question itself.
Justice Mellor challenged the sequencing. He noted that in the major UK FRAND trials, the royalty ultimately determined by the court has been lower than the rate sought by the SEP owner—sometimes substantially so. From that perspective, the implementer may have been perfectly justified in refusing the offer made to it.
The German approach is particularly sensitive to holdout: an implementer should not be able to indefinitely delay while continuing to use patented technology. The UK approach places greater weight on the opposite risk: an SEP owner may view the rejection of an excessive offer as evidence of unwillingness.
When courts collide
The disagreement becomes even more apparent when several jurisdictions are involved. Justice Mellor defended the UK’s use of interim license payments as a way to clear away sprawling multinational litigation. To bring a rate-setting claim in the UK, an implementer must commit to accepting whatever global FRAND terms the court ultimately determines. If the parties then enter into an interim license, the implementer pays provisional royalties while awaiting that final determination. The patent owner therefore receives compensation in the meantime and knows the dispute will ultimately end in a binding global license. This substantially reduces the need to pursue injunctions in other jurisdictions as leverage to force the implementer to take a license. As Mellor noted, once an interim license is in place, the parallel litigation can effectively “die away.”
Judge Schön saw the same mechanism very differently. He described the UK approach as a “torpedo strategy” that encourages forum shopping. In his view, an implementer can initiate a UK rate-setting action and seek an interim-license arrangement while injunction proceedings are moving more quickly elsewhere, including in Germany. If that interim arrangement is then used to argue that foreign injunction proceedings should no longer continue, it can effectively interfere with those cases before the UK court reaches its final FRAND determination. Munich courts have responded by issuing anti-interim-license injunctions to prevent the UK mechanism from derailing proceedings already underway in other jurisdictions.
Mellor pushed back. An implementer seeking a UK court’s determination of FRAND must commit to accepting whatever license the court ultimately finds FRAND. In his view, that commitment matters.
Another clash over patent quality
The friction extended to the valuation of specific portfolios. Munich’s recent FRAND guidance includes a rebuttable assumption about patent counts affected by Chinese policies encouraging patent filings. Schön explained that, in certain top-down calculations, the court considered a downward adjustment to patent counts. He emphasized that this is only an assumption and that the court is awaiting better evidence.
Judge Du firmly rejected this assumption, reminding the panel that FRAND is an industry commitment in which the “ND” stands for non-discriminatory. He cautioned that penalizing a portfolio based on its geographic origin rather than its individual technical merit risks violating the foundational principles of standard-setting policies.
He further emphasized that courts should be cautious about introducing presumptions that affect particular portfolios unless those presumptions are well supported. Mellor raised a related concern. Even a figure explicitly labeled a rebuttable assumption can quickly take on a life of its own. Once a court publishes a number, litigants in other jurisdictions may begin treating it as an established benchmark.
This point is a recurring problem in FRAND valuation: repetition is not validation! A number developed for one dispute can gradually become an input in later disputes, even when the underlying evidence has not grown stronger.
The broader context
A decade ago, SEP litigation was largely confined to a closed circle of telecommunications giants. Today, the battlefield has expanded to include streaming platforms, automakers, IoT devices, and SMEs, many of whom lack extensive FRAND litigation experience. With SEP disputes now routinely litigated across multiple jurisdictions simultaneously, procedural friction between courts is increasingly decisive. Until the global judiciary harmonizes its rules on willingness, transparency, and jurisdictional boundaries, global SEP litigation will remain a complex game of procedural arbitrage.
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