Samsung Electronics Co Ltd & Anor v ZTE Corporation & Ors

A standard-essential patent owner does not act in bad faith merely by using properly available infringement proceedings to press for determination of fair, reasonable and non-discriminatory terms by its preferred competent court. This applies unless there is a legitimate and substantiated objection to that forum.

The fact that another court was first seised is insufficient. There is no internationally agreed rule requiring the second court to cede jurisdiction, and treating priority as decisive would encourage pre-emptive forum shopping. An interim licence should ordinarily provide payment or security pending final resolution without forcing either party to accept a particular forum.

Samsung and ZTE owned global portfolios of standard-essential telecommunications patents and were negotiating a renewed cross-licence. Samsung commenced English proceedings seeking patent and FRAND relief and undertook to accept the licence determined by the Patents Court. ZTE subsequently commenced global FRAND proceedings in Chongqing and infringement proceedings in several jurisdictions.

Mellor J held in [2025] EWHC 1432 (Pat) that ZTE acted in bad faith by using the threat of injunctions to press Samsung to accept Chongqing as the determining forum. He declared that a willing licensor would grant an interim licence whose terms would ultimately be adjusted to match the English determination.

The central issue on ZTE's appeal was whether seeking to force an implementer to accept the SEP owner's preferred competent forum, rather than the implementer's preferred forum, constitutes bad faith.

1. Appeal allowed. ZTE did not act in bad faith by seeking, through properly available infringement proceedings, to persuade Samsung to accept a global FRAND determination in Chongqing. The judge had rejected Samsung's objections to the Chongqing Court and had found no attempt to obtain supra-FRAND terms. The case was therefore materially different from Panasonic v Xiaomi and Lenovo v Ericsson.

2. Unless there is a legitimate and substantiated objection to the proposed forum, a SEP owner does not act in bad faith merely by pressing for determination by its preferred court. Litigation in a party's home state is not objectionable in principle. The normal jurisdictional rule reflected in Article 4 of the Brussels I Regulation treats domicile as supporting jurisdiction, while practical considerations may likewise favour a home forum.

3. The English court's status as the court first seised did not make ZTE's conduct bad faith. Parallel determinations are duplicative, costly and risk inconsistent outcomes. Nevertheless, no internationally agreed jurisdictional rule requires the second court to cede jurisdiction. Treating priority as decisive would also encourage pre-emptive forum shopping.

4. A legitimate and substantiated objection to a forum may, in an appropriate case, support anti-suit relief. No such objection was established here. Conduct may be unattractive without reaching the legal standard of bad faith.

5. Birss LJ added that interim payment or security should ordinarily protect the implementer's continued market access pending final agreement or determination. An interim arrangement should generally remain jurisdiction-neutral and should not become a means of forcing an unwilling party to accept one forum. Arnold LJ expressly agreed with those observations, and Peter Jackson LJ agreed with both judgments.

6. Declarations 1, 3 and 4 could not stand. The court invited short written submissions on whether declaration 2, which recorded the agreed jurisdiction-neutral interim terms, should remain in force. It was unnecessary to determine the comity ground, although comity was a real concern.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 1383, allowed ZTE's appeal. It held that ZTE had not acted in bad faith and invited submissions on whether the jurisdiction-neutral declaration 2 should remain.
2. High Court, Patents Court: In [2025] EWHC 1432 (Pat), Mellor J declared that ZTE had breached its good-faith obligations and that a willing licensor would grant an interim licence adjustable by reference to the Patents Court's final FRAND determination.