Samsung v ZTE: Will multiple rate setting trials become more common?

​
November 12, 2026

As has been widely reported, it appears as if Samsung and ZTE may have settled their 5G licensing dispute. Although not the first case in which parallel rate setting actions have been brought (for example Conversant’s dispute with Huawei and ZTE entailed rate setting proceedings in both the UK and China, alongside German infringement claims), this is the first time multiple rate setting judgments have been produced by different courts in the same dispute. As well as the rate setting judgments from the UK and China, it is also notable that the Munich court also set out a hypothetical rate setting. This gives rise to the question as to whether this will develop into a trend, and will multiple rate setting actions become more common in FRAND disputes?

Which courts are willing to set FRAND rates?

To date, few courts have been willing to determine a FRAND rate, especially on a global basis. The UK courts have done so over the last ten years, starting with the case of Unwired Planet v Huawei. The Chinese courts have also been willing to do so, with several parties requesting rate determination on either a global basis or in respect of China only.  In contrast, the US courts will only do so where both parties consent to a rate setting, which has generally not been the case, at least with respect to a single jurisdiction. However, following the Sun Patent Trust v Vivo, and Ericsson v Transsion UPC actions, and in light of several supportive comments by some of the UPC judiciary [UPC rate setting article], it seems as if the UPC may join the list of jurisdictions willing to set FRAND rates.

Why multiple rate-setting actions may become more common

It has also mostly been the case that only one side of the dispute has requested a rate setting. Where multiple rate settings have been sought, as with Samsung v ZTE, it is because each side is prepared to have the FRAND rate determined by the court, but wishes to do so in a jurisdiction they perceive to be favourable to their case. With rate setting now well established in the UK and China, and with the increasing likelihood of rate setting becoming a strategic option at the UPC, there is certainly greater potential for parties to face multiple FRAND rate setting actions in a particular dispute. If so, what happens when different courts reach different conclusions as to what the FRAND rate should be?

What happens when courts reach different conclusions?

In the UK, a FRAND rate determination is not binding on an implementer. The implementer can refuse to enter into the court-determined licence; if so they will be deemed to be unwilling, having refused the offer of a FRAND licence, and, subject to a finding of patent infringement, will be subject to a patent injunction in the UK. It has been argued, in contrast, that a patent owner can be forced to offer and enter into a UK determined licence. This is because the UK treats FRAND disputes primarily as a matter of contract law, and it has been argued that a failure to offer a FRAND licence is a breach of contract which can be remedied by specific performance, i.e. issuing a positive injunction requiring the patent owner to enter the licence (or, as an alternative remedy by an award of damages). However, this has not yet been decided by the UK courts, and it is by no means certain that this will be the eventual outcome. Chinese FRAND determinations are potentially binding on the parties, but it is noted that in the case of ZTE v Samsung, the Chinese court enquired as to whether Samsung would abide by the Chongqing court’s decision, with Samsung responding that it always abides by the law, but it had given an undertaking to the UK court to abide by the UK court decision. Further, even if a court would be willing to force a party to enter into a FRAND licence, courts in other jurisdictions, notably Germany and the UPC, have been willing to issue anti-suit injunctions to prevent this, for example in the dispute between Amazon and Interdigital.

All of which means it is possible that multiple rate setting procedures could result in different determinations, with neither side able to actively enforce one on the other. Nevertheless, these independent adjudications have the potential to be important indications assisting the parties to reach settlement, which is what appears to have now happened in the Samsung and ZTE dispute. There was also some support for this from the UPC, which proposed that the parties enter into a global cross-licence on the basis of either the Chinese decision or the German ruling already handed down, but if not, suggested that they submit the case for mediation before the UPC’s Patent Mediation and Arbitration Centre (PMAC) (UPC_CFI_189/2025, Order of 13 May 2026, Settlement Proposal).

Could arbitration offer a practical alternative?

Clearly, conducting concurrent FRAND determinations in two or more jurisdictions raises concerns about efficiency. One possible alternative is the use of arbitration. This can arise with the agreement of the parties, and is sometimes useful in FRAND disputes, particularly in the case of renewals. As the parties have more control over both the procedure and the judicial panel, it has the potential to overcome some of the problems parties face in agreeing to a determination by a single court, although it does not entirely solve them. Lord Justice Arnold has even proposed that the UK court could set the terms of arbitration when parties were unable to agree this. The UK court has also ruled that a patentee can meet its FRAND obligation by offering an implementer a licence in which the final FRAND rate is determined by arbitration.

The direction of travel for FRAND disputes

Parties are bringing FRAND cases before an increasing number of courts around the world. Each has its own approach to the question of FRAND, and many seem unlikely to adopt a rate setting approach. Nevertheless, a number of recent judicial developments, including those in Samsung v ZTE, suggest that we may see more rate setting litigations, including concurrent rate setting actions, as well as rate setting by arbitration.

Need advice on FRAND and SEP disputes?

Our Litigation team advises on complex, cross-border patent and licensing disputes. Get in touch to discuss how we can support your strategy.

The Latest Thought Leadership pieces in the Content Hub

FRAND rate setting at the UPC: an emerging route for SEP owners?
November 10, 2026
The UPC could be emerging as an important new forum for FRAND rate setting. Drawing on recent patentee-led actions and judicial commentary, this article explores how SEP owners might seek a UPC determination of FRAND terms and what this developing approach could mean for European enforcement and licensing strategies.
Stay in the Know

The Patent Strategist

Get expert insights and the top patent stories delivered straight to your inbox.

Heading
This is some text inside of a div block.
This is some text inside of a div block.

Latest Insights

Showing 0 of 100
The UPC two years on: Withdrawals of actions becoming prominent
09 June 2025
The Unified Patent Court has now been running for two years. To mark the occasion, we have looked at the cases and the decisions over the past two years, and share our thoughts on the current state...
#
Litigation
​
INTA 2026 Essentials: Where to stay, what to see and what to do
03 June 2025
Discover the INTA 2026 Essentials! This comprehensive guide will help you navigate your stay, showcasing the best accommodations, must-see attractions, and exciting activities to enjoy during your visit.
#
Patenting
​
Building a Resilient Quantum Patent Portfolio: Winning the Race to File First
29 May 2025
A key question for those working in a fast-paced and complex industry such as quantum technology is when to patent any technological developments.
#
Consulting
​
AI and Bitstreams at the Core of China’s Patent Update
28 May 2025
On April 30, 2025, the China National Intellectual Property Administration (CNIPA) released a draft amendment of the Patent Examination Guidelines (for public comment), proposing further revisions to...
#
Patenting
​
Data Detection Technologies Ltd v Doytec Automation Ltd UPC_CFI_554/2024
23 May 2025
Order of 25 September 2024 [1] This Order to Preserve Evidence pursuant to Art. 60 UPCA concerns a machine manufactured by the defendant that was being displayed at a 3-day trade fair.
#
Litigation
​
Quantum Sensors: What are they and why do they matter to healthcare?
19 May 2025
The UN says we are in a year of quantum, celebrating 100 years since the development of quantum mechanics. While quantum computing is often the main talking point, the other areas of quantum tech,...
#
Consulting
​
Exploring IP in a Space Sector Product
09 May 2025
Introduction Innovative space sector businesses generate IP all the time. But it can be difficult to appreciate the range of IP being generated, or the value of that IP.
#
Patenting
​
Charged Up: Are we missing the potential of domestic battery storage for the energy transition?
21 May 2024
It's accepted that batteries will play a more and more important role in managing electricity demand as we transition to a greater proportion of renewables, but have we been thinking about them in...
#
Patenting
​
AI and Big Data in Agritech
28 March 2024
First published by Process Engineering - February 2024 The world's population stands above 8 billion in 2024 and is still growing. That growth may be slowing down but nonetheless there may be another...
#
Patenting
​
Trade Secrets vs. Patents in the UK Space Sector
11 September 2023
In this article we take a look at how trade secrets and patents compare as means of protecting inventions by UK space sector businesses. Background Properly protecting intellectual property is a key...
#
Patenting
​
A Year in Patents - Part 3/4: The Procedures of International Patent Prosecution
05 September 2023
Dr Girish Nivarti joined EIP's London office in October 2022. In this four-part series, he chronicles his first year as a trainee patent attorney.
#
Patenting
​
The UK National Semiconductor Strategy: a first glance
23 May 2023
The UK Government has released its National Semiconductor Strategy. The Strategy sets out the UK Government's vision for the semiconductor industry in the UK, and details funding and other...
#
Patenting
​
The Deep Non-Thinker
27 April 2023
Lock up your authors! ChatGPT is here! And it's coming for your IP! The internet is awash with content written about, or written by, the new chat-bot in town, ChatGPT.
#
Consulting
​
Geographic Scope of the UPC and Unitary Patent
22 February 2023
The grant of a European Patent allows patent rights to be obtained in respect of over 35 states by means of the respective validation procedures for those states.
#
Litigation
​
A Year in Patents - Part 1/4: Swapping Simulations for the Patent Profession
14 February 2023
Dr Girish Nivarti joined EIP's London office in October 2022. In this four-part series, he chronicles his first year as a trainee patent attorney.
#
Patenting
​