Contract, competition and the uneasy foundations of FRAND enforcement
12th IP and Competition Forum
Key Takeaway: FRAND disputes may look like patent fights, but once litigation begins they are increasingly fought on a different terrain: contract and competition law. That shift — and the tensions it creates across jurisdictions — framed a wide-ranging panel discussion at the OxFirst 12th IP and Competition Forum, held in Oxford on January 13 & 14 2026.
Mr Katz, Attorney and Advisor at PacTechLaw, opened by situating FRAND in its historical context. The concept traces back more than 75 years to US Supreme Court cases involving informal patent pools that excluded competitors and functioned as oligopolies. Courts intervened by requiring access to essential patents on reasonable terms. Over time, FRAND evolved alongside competition law — but the two remain distinct bodies of jurisprudence.
That distinction matters. FRAND commitments can be enforced as contracts, Mr Katz noted, often to protect third‑party beneficiaries. Those contractual obligations can be broader than what competition law alone would require, including global commitments. But gaps remain, particularly where contractual enforcement risks cutting across competition principles.
Starting with FRAND — not patents
One such gap lies in how courts sequence disputes. Mr Budwin, Partner at McKool Smith, observed that UK courts increasingly assume the existence of a FRAND contract and move directly to rate determination, often before resolving infringement, essentiality or validity.
Vice President for IP at Amazon, Mr Hayden, contrasted this with the traditional approach, which began with patent questions. The UK’s shift, he said, reflects pragmatism rather than doctrine. In large portfolios, litigating every patent makes little sense. An audience member added that the UK’s position is effectively that if at least one patent is valid and essential, the portfolio must be licensed.
Mr Budwin pushed back. Contract law, he argued, requires proof of all essential elements. Without a determined essential patent, there may be no enforceable contract at all — a tension that has yet to be fully resolved.
Competition law pulls in the other direction
Dr Lawrance, Partner at Bristows, explained how competition law fits into the picture. FRAND contracts exist because exclusive rights over essential technology can impede market access. Competition law demands openness in standard‑setting and, in some systems, proof of dominance before intervention. Contractual FRAND enforcement, by contrast, does not.
That divergence is visible in continental Europe. Professor Bonadio of London City University described how the European Commission has criticised German courts for straying from the Huawei v ZTE framework, particularly by labelling willing licensees as unwilling. In submissions to the Munich court, the Commission urged strict sequencing: injunctions should be a last resort, only once negotiations genuinely break down.
Mr Budwin noted that, in practice, parties know what to expect. The UK offers rate certainty. Continental courts offer injunction leverage. In the US, contract and competition defences are often raised together, though courts have yet to deliver definitive rulings on antitrust liability in SEP cases.
Injunction risk and forum choice
For implementers, the difference is not academic. Mr Hayden said the prospect of an injunction shutting down a business fundamentally changes behaviour. In Germany, avoiding an injunction may require accepting an offer even if it is not FRAND. In the UK, there is at least the prospect of a court‑set rate.
That divergence feeds directly into forum strategy. Dr Lawrance noted that UK courts place greater emphasis on negotiations and are less inclined than continental courts to police pre‑litigation conduct. Instead, they factor hold‑out behaviour into the eventual FRAND rate.
Interim licences sit squarely at this intersection. Prof Bonadio explained that UK courts ground them in their power to issue declaratory relief, giving provisional effect to FRAND contracts while terms are litigated. Implementers rely on such licences to argue they are willing, seeking to block parallel injunctions abroad. English courts, in turn, justify interim measures as necessary to protect their jurisdiction.
Some UPC judges have questioned whether UK rate‑setting should bind European courts, given perceived deviations from Huawei v ZTE. Lawrance rejected that characterisation, pointing to UK Supreme Court judgments that explicitly engage with and apply the CJEU’s framework.
Living with uncertainty
Despite the doctrinal debate, guidance on rate‑setting continues to evolve. Much turns on discrimination principles and whether comparable licences exist.
Asked how to advise clients, Mr Budwin was candid. The best outcome is always a deal. Failing that, companies must keep options open across forums and expect the other side to leverage every advantage. What is missing, he suggested, is a court system everyone perceives as balanced.
Mr Hayden closed on a business note. Jurisdictional uncertainty makes FRAND disputes expensive and complex, forcing companies to model multiple legal outcomes before they know the cost of access to technology they cannot realistically avoid.
The panel’s conclusion was implicit rather than explicit: FRAND may be rooted in contract and competition law, but its enforcement is increasingly shaped by forum risk, injunction leverage and courts’ willingness to step beyond patent questions — leaving businesses to navigate a system that is legally sophisticated, but still structurally unsettled.
Note: The views of the speakers do not necessarily reflect those of OxFirst, its affiliates, or employees. They also do not represent an official view of the companies the speakers work for. They are only the personal views of the speaker.
Email:info@oxfirst.com for more information