Acer Incorporated & Anor v Nokia Technologies OY

A court deciding whether to grant a case management stay may impose a condition removing a term which it has summarily found inconsistent with RAND obligations. A SEP owner cannot satisfy RAND by requiring an implementer to arbitrate disputed cross-licence terms where the implementer is entitled to choose between arbitration and court proceedings. This is particularly so where the proposed cross-licence concerns SEPs in a different technology area, subject to different standards, SDO policies and governing law. Conditions governing the stay belong in the court’s order, rather than necessarily in the licence. A party may raise a point as a condition of an appellate order even if procedural rules prevented it being used to uphold the order below, provided the opposing party has had a fair opportunity to address it.

Nokia appealed decisions concerning jurisdiction and a case management stay in proceedings brought by Acer and Asus concerning licences for Nokia’s SEP Codec Portfolio. The Court of Appeal’s main judgment, [2026] EWCA Civ 564, dismissed the jurisdiction appeal and allowed the appeal concerning the stay. The appealed judgment was that of Mr Justice Mellor, cited as [2025] EHWC 3331 (Pat).

This consequential judgment addressed whether the stay should be conditional on removing a disputed term requiring arbitration of a cross-licence dispute, whether the agreed conditions should appear in the licences or the court order, whether declaratory relief was appropriate, and whether permission to appeal should be granted.

The Court unanimously determined the consequential issues, with Lord Justice Arnold giving the reasons and Lord Justices Zacaroli and Peter Jackson agreeing.

1. Procedural point. The claimants were entitled to advance the disputed-term argument as a condition of the Court’s order. That was distinct from relying on the point to uphold the High Court’s order, and Nokia had addressed the merits in written submissions ([8]).
2. RAND status. Having summarily determined in the main judgment that the Adjustable Licence Offers were capable of acceptance and were RAND offers, the Court was equally able to determine whether the disputed term was RAND. It held that the term was not RAND ([10]).
3. Choice of dispute-resolution mechanism. A SEP owner may choose between arbitration and court proceedings for determining (F)RAND terms. Accordingly, where cross-licence terms were not agreed and the implementer declined arbitration, Nokia could not satisfy its RAND obligation by requiring the implementer to arbitrate that dispute. The claimants’ choice concerned their own SEPs, although this did not prevent Nokia bringing proceedings for a declaration of (F)RAND terms or seeking an interim licence declaration ([12]).
4. Alternative ground. Even if that analysis were wrong, it was not arguable that RAND could be made conditional on arbitration of a dispute concerning SEPs in a different technology area, different standards, a different SDO policy and different governing law ([13]).
5. Consequential orders. The case management stay was to be conditional on excision of the disputed term. The agreed conditions from paragraph 92 of the main judgment were conditions of the stay and therefore belonged in the Court’s order, not the Adjustable Licences. The order could clarify that the conditions were without prejudice to the arbitrators’ ordinary case management powers ([14]-[17]). Declaratory relief was inappropriate because Nokia had applied for a case management stay rather than summary judgment ([16]). Permission to appeal to the Supreme Court was refused, and costs and remaining wording issues were left for further agreement or submissions ([18]-[20]).

• Court of Appeal (Civil Division). In the main judgment, [2026] EWCA Civ 564, the Court dismissed Nokia’s appeal on jurisdiction and allowed its appeal concerning the case management stay. This judgment determined the consequential conditions and related applications.
• High Court of Justice, Business and Property Courts of England and Wales, Intellectual Property List (ChD), Patents Court. The appeal was from the judgment of Mr Justice Mellor, cited as [2025] EHWC 3331 (Pat), which dismissed Nokia’s application for a case management stay.