The past year has witnessed significant developments in global disputes concerning the licensing of standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory (FRAND) terms. A well-publicized rift has emerged between the UK and European courts over their respective approaches to global FRAND litigation.
Competing UK and European Approaches
The UK courts have begun routinely granting implementers of standardized technologies interim license declarations in disputes with SEP holders. The Unified Patent Court (UPC) and Munich Regional Court I, for their part, have responded with anti-interim license injunctions (AILIs) to prevent implementers from pursuing interim license relief in UK courts.
The tensions between these jurisdictions have only escalated, with a UK court entering an ex parte anti-anti-suit injunction (AASI) to stop SEP holders involved in a dispute from seeking further relief in other jurisdictions (including relief related to non-UK patents and non-SEPs) while criticizing other jurisdictions for not conducting fulsome FRAND analyses. In addition, the UPC has issued orders indicating that the UK courts’ interim license declarations and plans to set global FRAND rates are unenforceable outside the UK.
These dramatic developments in Europe have (understandably) occupied the attention of companies and legal practitioners involved in global SEP disputes. However, Japanese courts have recently been issuing guidance that provide insight into their own model for resolving global SEP disputes.
Japan’s Approach to FRAND Proceedings
SEP litigation in Japan has largely been dormant since the Grand Panel of the IP High Court issued its decision in Apple v. Samsung (2014). There, the Grand Panel held that it would be an abuse of right under Japanese law to grant an injunction against an implementer for SEP infringement if that implementer was willing to license the SEP on FRAND terms. For more than a decade following Apple v. Samsung, it appears that no Japanese court granted injunctive relief for infringement of an SEP.
That changed in June 2025, when the Tokyo District Court granted Pantech injunctive relief covering Google’s Pixel 7 smartphones for infringement of a 4G SEP. Roughly a year earlier, the district court had made a provisional finding of infringement and encouraged the parties to engage in global settlement discussions.
Google agreed to participate in settlement discussions but, in the court’s view, failed to engage in good faith by not disclosing its sales volumes of the infringing products, preventing calculation of a FRAND royalty. Accordingly, the Tokyo District Court found that Pantech’s injunction request did not constitute an abuse of right. (In contrast, the same judge denied Pantech’s request for an injunction against Asus, which, unlike Google, was not found to have acted as an unwilling licensee.)
Following the injunction covering the Pixel 7 (a smartphone Google had discontinued), Pantech sought injunctions against the Pixel 8, 9, and 10 series. The parties renewed settlement negotiations, and the district judge made what it characterized as a nonbinding final recommendation for a settlement amount “determined to be reasonable as a royalty” for a license “under FRAND terms covering the entire global SEP portfolio” of Pantech. On December 18, 2025, the parties accepted the court’s recommended royalty and agreed to a license.
Japan’s FRAND Litigation Guidelines and SEP Mediation Procedures
In January 2026, the IP Division of the Tokyo District Court released two documents regarding SEP disputes. The first, Guidelines for Patent Infringement Litigation Based on Standard Essential Patents (a nonofficial AI-generated English translation of the guidelines is available here), appears to be modeled on the judge’s approach in Pantech v. Google. The second, SEP Mediation Procedures (available in Japanese here), details the specific mediation procedure for SEP disputes that are briefly discussed in the guidelines.
The guidelines state that a “critical role” of the court “is to provide a mechanism for achieving consensus on licensing fees under FRAND terms … for the SEP holder’s entire global SEP portfolio.” To facilitate this, the Japanese courts will generally recommend intensive, court-supervised settlement conference dates at the outset of litigation. If negotiations fail, the parties will brief whether the abuse-of-rights defense applies—“i.e., whether the implementer has demonstrated willingness to take a license under FRAND terms,” including consideration of the “negotiation history and substance from pre-litigation through termination of settlement proceedings.”
The court may also “present a settlement proposal concerning Global FRAND Royalty.” The SEP holder must first propose a Global FRAND Royalty “with specific articulation of calculation methodology and supporting rationale,” which may include “top-down approaches, comparable license approaches, or combinations thereof.”
The implementer will respond with its counterproposal and “calculation rationale,” which must include “evidence concerning sales volume, sales value, and related matters for accused products.” And if the implementer “fail[s] to voluntarily submit evidence necessary for calculating Global FRAND Royalty,” the court “may determine that the [implementer] lacks willingness to take a license under FRAND terms.” (That is precisely what happened in Pantech v. Google.)
The mediation procedures, in turn, outline a similar process to be overseen by an expert mediation committee, comprising a judge from the IP Division and two experts with experience in IP disputes. If the mediation is unsuccessful, the mediation record will note that fact, and the parties may submit the mediation record in subsequent litigation as evidence for, or against, the implementer’s abuse-of-rights defense.
While the Tokyo District Court’s new guidelines and mediation procedures need to be pressure tested in real disputes, we highlight three immediate takeaways.
A Nonbinding, Mediated Recommendation
Unlike the UK courts, which typically set a FRAND rate for a patentee’s global SEP portfolio, the Japanese courts do not in general unilaterally determine a Global FRAND Royalty without the consent of the parties. Instead, the court may recommend a nonbinding royalty rate as part of a court-supervised settlement process that the parties need not accept. The guidelines and procedures suggest the Tokyo District Court intends its recommendations to have effect only in proceedings in Japan without extraterritorial implications. While the new guidelines and mediation procedures state that the court will “recommend” mediation and a Global FRAND Royalty, it is unclear whether acceptance of the recommendation is truly voluntary given that the Tokyo District Court may find an implementer (e.g., Google) to be an unwilling licensee for failure to adequately participate in the court-supervised process.
The Japanese court’s analysis of the implementer’s willingness may hinge on the implementer’s participation in the court-supervised settlement discussions rather than the parties’ earlier out-of-court negotiations. The guidelines, however, suggest that (at least after a failed mediation) the Japanese courts may be open to considering a range of evidence of the parties’ willingness to offer, and take, a license on FRAND terms. Further litigation will be needed to develop this body of caselaw on what constitutes a willing or unwilling licensee.
Notably, the court-facilitated mediation between Pantech and Google took place over at least several months, and the Tokyo District Court’s recently announced SEP mediation procedures put in place a FRAND mediation system to resolve the dispute within three mediation sessions over a six-month target date. Given that both the World Intellectual Property Organization and UPC offer (or will offer) private mediation services for SEP disputes, it is unclear whether the Tokyo District Court’s system will attract users.
Potential Implications for Interim License Proceedings
In Samsung v. ZTE, the UK Court of Appeals reversed the lower court’s grant of an interim license declaration. The court addressed concerns about comity and held that it was inappropriate for the UK court to grant an interim license that would “force” the SEP holder to reconsider its position about the preferred forum. Accordingly, the SEP holder was permitted to pursue injunctive relief in foreign courts to “pressure” the implementer into accepting the jurisdiction of the SEP holder’s preferred forum for a determination of FRAND terms—namely, the Intermediate People’s Court of Chongqing.
Following this logic, a patentee litigating infringement of one or more SEPs in the Tokyo District Court may likewise argue before the UK courts that under Samsung v. ZTE, it should be permitted to seek injunctive relief in Japan to “pressure” the implementer into acceding to the Tokyo District Court’s supervised, nonbinding settlement procedure, without the risk that the UK High Court will issue an interim license declaration in the implementer’s favor. It remains to be seen whether the UK High Court will consider the Tokyo District Court’s procedure to be worthy of deference.
Expanding Beyond the Top-Down Approach
Although questions surrounding how Japanese courts may calculate FRAND royalty rates remain unsettled, the guidelines appear to provide some clarity. In Apple v. Samsung, the Grand Panel employed a “top-down” methodology. It has been reported that the Tokyo District Court likewise relied on a top-down methodology to calculate its proposed Global FRAND Royalty in settlement discussions. However, the newly released guidelines and mediation procedures expressly state that an SEP holder may employ a comparable licenses approach in lieu of, or in combination with, a top-down methodology when presenting its proposed Global FRAND Royalty.
Alston & Bird will continue monitoring global developments—in the UK, Europe, Japan, Morocco, Nigeria, and elsewhere—that may impact the resolution of SEP licensing disputes.
If you have any questions, or would like additional information, please contact one of the attorneys on our Antitrust team.
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