Tesla v InterDigital & Avanci [2025] EWCA Civ 193
In the latest chapter of FRAND litigation before the English courts, the Court of Appeal sets the boundaries of the courts’ jurisdiction to make FRAND declarations requested by the implementer in relation to a SEP platform (here, the Avanci 5G Platform targeting the automotive industry).
The appeal considered Fancourt J’s judgment ([2024] EWHC 1815 (Ch)) allowing Avanci’s Part 11 Application to set aside permission to serve out granted to Tesla on its ex parte application before Mellor J. We have summarised the factual background of the dispute in our previous note here.
The Court heard the appeal in December 2023. Notwithstanding the main judgment given by Arnold LJ, the majority (Phillips and Whipple LLJ) dismissed Tesla’s appeal for lack of a serious issue to be tried against each of Avanci and InterDigital alone. Notably, the majority confirmed that Tesla does not meet the requirements set out in Vestel Electronic Sanayi Vi Ticarat AS v Access Advance LLC [2021] EWCA Civ 440 in circumstances where it does not have any legally enforceable right against Avanci. Of relevance to the Court’s decision was, inter alia, the fact that Avanci does not agree or purport to fulfil any SEP owner’s ETSI obligations, which individual SEP owners remain under an obligation to satisfy by offering bilateral licences on FRAND terms. Instead, the Avanci 5G Platform is simply a commercially convenient arrangement through which SEP owners can choose to licence their SEPs in the alternative to a multitude of bilateral agreements and outside the scope of their ETSI FRAND undertaking.
The Court unanimously upheld the Judge’s decision refusing to permit the claim for FRAND declarations to be brought against InterDigital under CPR rule 19.8 as a representative of all SEP holders whose SEPs are included in the Avanci 5G Platform.
Tesla was refused permission to appeal by the Court of Appeal. It is entitled to apply for permission from the Supreme Court.
Brian Nicholson KC and Miruna Bercariu acted for Avanci, jointly instructed by Osborne Clarke and EIP.