Lenovo Group Limited & Ors v Telefonaktiebolaget LM Ericsson (publ) & Anor

The sequencing of technical and FRAND trials is ordinarily a matter of case-management discretion, not a legal rule requiring validity, essentiality and infringement to be determined first. The court may determine FRAND terms before a technical trial where the circumstances justify that course, including where the parties plainly require a global cross-licence and delay may facilitate hold-up.

Authorities stating that infringement is an essential step before a FRAND injunction or election do not dictate the order in which trials must be conducted. Expedition must also account for the good administration of justice as between the parties and other court users.

Lenovo and Ericsson held portfolios of cellular standard-essential patents and accepted the need for a global FRAND cross-licence, but were litigating infringement and licensing issues in several jurisdictions.

Lenovo’s English proceedings included claims concerning a Lenovo patent, Ericsson’s challenged patents, and declarations as to FRAND terms. At the case-management conference, the court had to decide whether the FRAND trial necessarily had to follow a technical trial, and whether the FRAND trial should be expedited to March or April 2025.

1. FRAND declarations based on the challenged patents. The English court had jurisdiction and a discretion to make the requested FRAND declaration. That discretion could be exercised without a prior finding that the Lenovo patent was valid and infringed. The claim was not a prohibited free-standing claim because Lenovo asserted a legally enforceable right arising from Ericsson’s FRAND commitment. The court therefore had power to list the FRAND trial first.
2. Sequencing of trials. The patent bargain explains the court’s power to determine FRAND terms in an infringement case, and infringement remains an essential stepping stone before a FRAND injunction or compulsory election can be imposed. It does not, however, prescribe the sequence of technical and FRAND trials. Nokia v Oppo and Optis v Apple were concerned with the characterisation of disputes, or the consequences after infringement had been established, rather than trial ordering. Vringo v ZTE did not establish a contrary principle. The question was one of case management in the circumstances of each case.
3. The court considered that a FRAND trial should precede the technical trial. The parties plainly needed a global cross-licence. The alternative forum might not determine the licence and was unlikely to do so before late 2026. A technical judgment might also be appealed or unavailable in time. The FRAND trial was therefore ordered first, subject to the technical trial being listed earlier if practicable.
4. Expedition. The court applied the four-stage approach in WL Gore. Expedition was justified, but removing other parties from the March 2025 list would not accord with the good administration of justice. A trial window at the end of April 2025 was available without displacing other court users and could be achieved through a tight timetable, simultaneous expert evidence and expert meetings. The FRAND trial was ordered in that window; the technical trial was left to ordinary listing arrangements.

This was a first-instance case-management judgment. The court referred to its earlier jurisdiction judgment, [2024] EWHC 846 (Ch), which had not been appealed.