Recently, on March 18, the Mannheim Regional Division of the Unified Patent Court (UPC) held an oral hearing in the ZTE v. Samsung case. During the hearing, Presiding Judge Peter Tochtermann presented the framework for the UPC’s procedure for determining FRAND rates.
The cross-claim filed by Samsung against ZTE, which was originally scheduled to be heard concurrently, has been stayed by the court until the opposition proceedings regarding the patent in question at the European Patent Office (EPO) are finally concluded; this case may be shelved for several years. The suspension stems from a negative non-binding preliminary opinion (NBPO) previously issued by the EPO’s Opposition Division, which concluded that Samsung’s EP4096288 patent was invalid in its granted form and that the auxiliary claims filed at the time lacked patentability.
In the ZTE v. Samsung case, which proceeded as scheduled, Judge Tochtermann explicitly stated that the panel was inclined to dismiss Samsung’s FRAND counterclaim on the grounds that Samsung had already filed a similar claim with the Frankfurt Regional Court in 2025; under the Brussels I Regulation, the same dispute cannot be heard concurrently in two different courts within the EU.
Nevertheless, Judge Tochtermann hypothetically explored the potential procedural path should the application be accepted. The UPC Rules of Procedure generally permit implementers to file FRAND rate determination counterclaims. He ruled out the possibility of holding a case management conference at an early stage, citing the rapidly evolving landscape of global SEP disputes and the fact that both parties have pending FRAND litigation in the United States, China, and the United Kingdom, making an early assessment inappropriate.
Regarding the specific envisaged procedure for rate determination, if the UPC ultimately needs to determine a FRAND rate, the panel of judges expects to schedule a three- to four-day dedicated hearing for concentrated proceedings. On the first day, the judge would pose questions and clarify points of uncertainty, followed by both parties presenting their proposals and the basis for their calculations; Over the following two days, the parties would conduct scenario-based simulations and answer the court’s questions, ultimately narrowing down the rate range, within which the judges would determine the specific rate. This procedure bears a strong resemblance to mediation proceedings.
Judge Tochtermann also pointed out a potential issue: the wording of the two FRAND counterclaims filed by Samsung is overly restrictive, with the scope of their claims being very narrow, as both request the court to determine a specific rate. If the court deems another rate more feasible, the claims risk being dismissed. He advised the parties to file broader, well-structured claims. Another issue is that if the court determines the implementer is unwilling to accept a license, the likelihood of the FRAND counterclaim being upheld is negligible.
Regarding the relationship between FRAND counterclaims and patent validity, Judge Tochtermann explicitly stated that even if the panel finds the relevant patent invalid or non-infringing, it will continue to hear the FRAND counterclaim, as such counterclaims typically target global SEP portfolios. This statement holds practical significance in the current case—the panel has serious doubts regarding the validity of the ZTE patents at issue.
The UPC Mannheim Regional Division is expected to issue a ruling in April. Since filing its lawsuit against Apple in 2011, Samsung has suffered at least seven patent litigation defeats in Mannheim. If it loses this case, Samsung will face the risk of sales bans in multiple European countries covered by the UPC.
On the same day as the hearing, in the U.S. District Court for the Northern District of California, Judge Araceli Martínez-Olguín issued an order on March 18 requiring Samsung to provide justification. Samsung had previously failed to amend its FRAND complaint within the deadline; if the justification is found to be insufficient, the case may be dismissed without prejudice.
In addition, FRAND rate determinations are currently underway in Chinese courts and the UK High Court; the First Regional Court of Munich, Germany, is scheduled to issue a ruling on April 15 in another infringement case brought by ZTE against Samsung. An opposition hearing regarding Samsung’s patents at the EPO is set for March 26, and its outcome will directly impact the fate of the patents in question.
