Negotiating under pressure: how Anti-Suit Injunctions and Interim Licences are reshaping FRAND talks

12th IP and Competition Forum

Key takeaway: Anti-suit injunctions and interim licences are no longer niche procedural tools, we heard panelists say at the Oxfirst 12^th IP and Competition Forum. They are reshaping how parties negotiate FRAND licences — and not always in ways courts originally intended. That was the central takeaway from a panel discussion examining how negotiations unfold when litigation outcomes increasingly hover in the background.

Opening the discussion, Mr Brown, a Partner at Hogan Lovells, posed a simple question with far-reaching implications: do Anti Suit Injunctions and interim licences actually change how parties negotiate? And if so, are courts comfortable with the leverage they are creating?

Mr Boon, Partner at Bristows, suggested that FRAND rate-setting cases represent only the visible tip of a much larger commercial iceberg. The overwhelming majority of licences are concluded before any court becomes involved. Traditionally, courts sought to replicate commercial outcomes. But since Unwired Planet, UK courts have begun to go their own path — and those judicial choices now feed back into how parties behave at the negotiating table.

That feedback loop, Mr Brown noted, risks turning negotiations into performance. Guidance from the CJEU on how parties should conduct FRAND negotiations was intended to move discussions forward. Instead, parties increasingly shape their behaviour with an eye to how it will later be scrutinized in court.

From good faith to chess game

Partner at NLP Legal, Ms Santos, described the resulting shift starkly. Settlement talks, once protected by confidentiality and privilege, have become evidentiary minefields. Negotiation is now a “chess game”, with each move calibrated not just to reach agreement but to withstand later judicial scrutiny. The question, she suggested, is whether this framework serves users and innovation — or merely helps parties manoeuvre toward preferred court outcomes.

Senior Vice President at Nokia, Ms Rawnsley, urged perspective. Litigation accounts for perhaps 1 to 5 percent of licences; the rest are concluded amicably. The Huawei v ZTE framework, she argued, was never meant to replace genuine commercial negotiation. FRAND relationships are repeated games, not one-off transactions, and trust and renegotiation matter. Where rates cannot be agreed, Alternative Dispute Resolution (ADR) mechanisms exist — but only if parties remain willing to engage.

That willingness, however, is increasingly jurisdiction-dependent. Mr Maunder, Partner at Osborne Clarke, highlighted how different court standards influence global negotiations. According to him, the English courts allow late-stage “repentance”, enabling an implementer to become willing at almost any point. German courts are stricter in his view. In practice, companies tend to align their behaviour with the toughest regime, adopting a single global strategy rather than managing multiple versions of compliance.

Ms Rawnsley questioned whether that undermines good faith. If implementers know they can always go to the UK and secure a court-determined rate, does that weaken incentives to negotiate seriously elsewhere? Equally, she asked, why should years of good-faith negotiation be discounted simply because a party refuses to submit to a jurisdiction it never consented to?

Litigation as leverage, not endpoint

Several speakers noted how dramatically incentives have shifted. As Mr Brown observed, SEP holders once sued for infringement when patience ran out. In the UK, that is no longer the norm. Instead, litigation is increasingly implementer-led, framed as enforcement of contractual FRAND rights.

Mr Maunder described a landscape with more options than ever: German courts with established injunction jurisprudence, UK courts offering rate certainty, and the UPC emerging with its own flavour of the German approach. Strategic litigation now shapes negotiations as much as commercial bargaining.

Ms Santos contrasted German injunctions with UK rate-setting and interim licence actions. While litigation does not end negotiation, it changes its tone. The risk of “splitting the difference” discourages compromise, as concessions today may simply reset tomorrow’s midpoint. Interim licences may soften that effect, particularly where arbitration is used to avoid locking in distorted benchmarks — though rushed interim arbitration brings its own risks.

Mr Boon suggested that interim licences only work if they rest on clear terms. Chronology, forum choice or the patent holder’s selection of terms may all play a role. Historically, English courts have been comfortable resolving disputes over forum and timing — a skill that may become increasingly relevant.

Looking ahead to the UPC

Attention turned to the UPC’s future role. Principal Associate at Freshfields, Mr Schubach, cautioned that rate-setting sits uneasily with the German tradition, where FRAND assessment remains tied to infringement. Even so, there appears to be appetite within the UPC to engage with interim measures. Ms Santos noted that draft UPC mediation and arbitration rules already contemplate temporary licences.

The panel closed with a cautionary tale. Ms Santos recalled Portugal’s experiment with mandatory pre-infringement arbitration in pharmaceuticals. The regime produced a surge in settlements — until it became voluntary. Once compulsion disappeared, so did participation.

The lesson was clear. Negotiation thrives on incentives, not ideals. Anti Suit Injunctions and interim licences may encourage settlement — but the more negotiations take place in their shadow, the closer parties drift toward the courtroom they claim to want to avoid.

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.