Lenovo v Ericsson

In the third such case to be heard by the Court of Appeal in quick succession, following Panasonic v Xiaomi and Alcatel v Amazon, the Court held unanimously that (¶157):

1. Ericsson is in breach of its obligation of good faith under clause 6.1 of the ETSI IPR Policy by pursuing claims for injunctions and equivalent remedies in foreign courts and tribunals despite Lenovo (a) having undertaken to enter into a licence on the terms determined by the Patents Court to be FRAND (subject to adjustment on any appeal), and (b) having offered to submit to determination of FRAND terms by the US District Court for the Eastern District of North Carolina.
2. A willing licensor in the position of Ericsson would enter into an interim licence with Lenovo pending that determination, and a FRAND royalty for that licence would be the midpoint of the parties’ position, subject to subsequent adjustment by the Court.
3. Making the declaration sought by Lenovo would serve a useful purpose; and the declaration should not be refused on the grounds of comity.

The judgment can be found here.

The counsel team for Lenovo at the appeal hearing included James Segan KC, instructed by Kirkland & Ellis. Lenovo’s counsel team also included Ravi Mehta and Femi Adekoya at earlier stages of the appeal.