A Mode of Performance, Not a Discharge: Tesla v. InterDigital and the FRAND Undertaking Inside the Pool

My forthcoming book, A Contractual Theory of FRAND: From Private Normativity to Legal Obligation in Technical Standardization, starts from a question that remains insufficiently examined in standard-essential patent litigation: what is the legal basis, content and effect of the FRAND undertaking? Although FRAND terms may be negotiated or valued without an explicit resolution of that question, legal qualification becomes unavoidable when courts must determine why the undertaking is binding, who may invoke it and what remedies follow from its breach. The book argues that, under the ETSI IPR Policy and the French law governing it, contractual analysis offers the most coherent account of those issues.1

That qualification was debated at a judges' roundtable held in Paris on 13 November 2025. Judge Nathalie Sabotier defended, in substance, the analysis of the ETSI undertaking as a stipulation pour autrui. As I understood and recorded her intervention, she also considered that the beneficiary could obtain the judicially compelled conclusion of the FRAND licence.2I agree with the first proposition. I do not accept the second as an automatic consequence of the first.

The distinction is not semantic. Under Article 1206 of the French Civil Code, a third-party beneficiary acquires a direct right to the promised performance against the promisor.3But the nature of that performance must still be identified. Clause 6.1 does not contain a completed licence. It does not fix, by itself, the royalty, territorial scope, portfolio, duration, accounting provisions, releases, audit rights or the other terms ordinarily required to form a complex patent licence. Nor is the declaration naturally characterised as an offer under Article 1114 or as a unilateral promise of contract under Article 1124, both of which presuppose that the essential terms of the contemplated contract are already determined.4

This does not reduce the undertaking to an unenforceable invitation to negotiate. The beneficiary holds more than a procedural right to discussions: it has a direct right to proper performance of the undertaking, which requires the SEP owner to make FRAND access genuinely available. The content of that obligation may be determined by reference to the contract, commercial practice and the parties' prior dealings; French law expressly permits a contractual performance to be determinable without a fresh agreement on its content.5A court may therefore identify the FRAND terms, require a conforming offer, police good-faith performance and draw the appropriate consequences for patent remedies. Yet determination is not formation. Specific performance enforces the obligation that exists; it does not, without more, transform an undertaking whose terms must be concretised into a bilateral licence already concluded.6

Two extremes must be rejected. Implementation of the standard does not itself make the implementer a licensee. Conversely, the SEP owner has not merely promised to behave politely while remaining free never to license. The undertaking is substantive but not self-executing: more than a duty to negotiate, less than an automatically perfected licence. Unwired Planet already pointed in that direction when it recognised the enforceability of the French-law undertaking while rejecting the proposition that the implementer is already licensed.7

This distinction governs the reading of Tesla v InterDigital. The UK Supreme Court did not conclude a platform licence for Tesla. It did something anterior: it allowed Tesla to seek declarations identifying what performance of the SEP owners' existing FRAND undertakings may require when those owners have chosen to perform through Avanci.

What the Court did not decide

On 27 July 2026, the UK Supreme Court did not hold that the Avanci 5G Platform rate is not FRAND. It did not hold that Avanci owes an independent FRAND obligation. It did not hold that every offer made under a SEP must itself be FRAND. The appeal arose on jurisdiction and strike-out, and the relevant merits threshold was whether Tesla had a real, rather than fanciful, prospect of success.8

That procedural posture matters throughout the judgment. The Court's repeated formula is that Tesla has raised a serious issue to be tried. Questions of evidence, valuation, procedural fairness and the final form of relief remain for trial. The decision should therefore not be presented as a merits judgment on the platform rack rate, still less as a general judicial certification that all pool or platform rates are subject to the same rule.9

What the Court did decide is nonetheless structural. Tesla's licensing claims are justiciable; they may be brought proactively in England; and a SEP owner cannot make the undertaking legally irrelevant by inserting a licensing platform between itself and the implementer. Tesla's appeal was allowed in its entirety (at [220]).

Avanci administers a global 5G licensing platform for connected vehicles. It owns no SEPs, has given no undertaking to ETSI and can license only the platform as a whole. At the Supreme Court hearing, counsel for Avanci stated that the platform brought together 89 SEP owners licensing 86 vehicle brands, representing the equivalent of more than 7,500 bilateral licences.10Tesla, wishing to launch 5G-enabled vehicles in the United Kingdom, challenged the platform rate before launch and sought declarations both that the rate was not FRAND and as to the rate that would be FRAND. Fancourt J struck out the licensing claims; the Court of Appeal dismissed Tesla's appeal by a majority, Arnold LJ dissenting.11

The case is thus not simply about a pool. It concerns the legal consequences of a change in licensing architecture. The SEP owners had given individual undertakings. They later selected collective performance through a common agent. The question was whether that organisational choice could alter the opposability, content or judicial enforceability of the obligations already undertaken.

The undertaking does not stop at the agent's door

The starting point is Clause 6.1 and the corresponding declaration. The ETSI IPR Policy is a French-law contractual instrument; the declaration creates a contract for the benefit of third parties, or stipulation pour autrui, under which the declarant undertakes to make licences of its essential IPR available on FRAND terms.12This is not an exotic gloss placed on the text by the Supreme Court. It follows the analysis accepted in Unwired Planet, is consistent with the French civil-law literature and was treated as common ground in the Paris proceedings in TCL v Philips and ETSI.13

The Supreme Court found nothing in the declaration or the wider IPR Policy capable of causing the obligation to disappear when two or more owners choose to license jointly through an agent. The anti-hold-up purpose applies with at least equal force when a very large part of the relevant SEP stack is aggregated in one offer (at [83]-[86]). Competition law reinforces that conclusion without supplying its private-law source: the European Commission's 2014 technology-transfer guidelines conditioned the pool safe harbour, among other matters, on licensing out to all potential licensees on FRAND terms, and the US Department of Justice's 2020 review of the proposed Avanci platform likewise left each SEP owner responsible for deciding whether the platform complied with its own commitments.14

The Court of Appeal majority had treated the platform offer as a separate voluntary commercial arrangement because no owner had undertaken to license collectively. The Supreme Court correctly identified the false premise. Tesla was not seeking to enlarge the undertaking by obliging InterDigital to join a pool. InterDigital had already joined. Tesla's case was that this voluntary choice could not release InterDigital from an obligation given earlier and independently (at [82], [88]-[89]).

The distinction is decisive. The platform is not the source of the obligation. It is one possible instrument of its performance. Agency changes who communicates and administers the offer; it does not alter what the principal has promised to make available. A platform licence is therefore a mode of performance, not a discharge.

This is also why the decision does not threaten pools as such. A pool remains an efficiency-enhancing device capable of reducing transaction costs, clearing large portfolios and avoiding duplicative bilateral negotiation. The judgment merely rejects the proposition that efficiency produces immunity. A licensor may outsource licensing operations. It cannot outsource the legal standard governing the performance of its own undertaking.

Commercial reality specifies performance; it does not create the obligation

The Supreme Court rejected Tesla's broadest submission that every offer of a licence under a SEP must be FRAND. A SEP owner remains free to negotiate a separate commercial arrangement on non-FRAND terms, provided that FRAND terms are genuinely available.15This preserves a distinction sometimes obscured in FRAND litigation: the undertaking governs the availability of compliant performance; it does not invalidate every consensual departure from the benchmark.

The narrower case accepted as seriously arguable was different. For a SEP owner that has placed its patents on the Avanci platform, the only commercially real FRAND licence of its UK SEPs may be the platform licence at a FRAND rate, rather than a theoretical sequence of bilateral licences with that owner and every other platform licensor (at [95]-[103]). The Court reached that conclusion by applying Unwired Planet's instruction to construe the ETSI IPR Policy against commercial practice in the real world.16

That reasoning is persuasive, provided it is kept in its doctrinal order. Commercial reality can specify what faithful performance requires; it does not create the obligation. The obligation arises from the declaration. Market practice then informs its content by showing which licensing route is genuinely available, how portfolios are ordinarily cleared, and whether a supposed alternative is commercially meaningful. Otherwise factual indispensability would become a source of juridical entitlement — precisely the substitution of effectiveness for legal qualification that FRAND analysis should avoid. What the market cannot do without and what a promisor has undertaken to provide are two different propositions, and only the second is enforceable.17

Avanci itself invoked the practical impossibility and cost of negotiating thousands of bilateral licences to justify the platform. Its own counsel described the alternative as a "licensing debacle". Several interveners likewise explained that, in their industries, bilateral licensing is not a realistic or viable route.18Once that commercial account is accepted, it is difficult to maintain simultaneously that bilateral licences provide sufficient market discipline and that no court may scrutinise the rate of the mechanism that has replaced them.

The Supreme Court also accepted the practical corollary. If the platform rate could not be tested, the individual undertakings might become ineffective precisely where collective licensing is most successful. The rate used in practice by SEP owners to satisfy their obligations would be placed beyond effective FRAND review (at [135]-[139]). The architecture of performance would then consume the obligation it was supposed to perform.

At trial, however, the proposition must still be proved. The relevant inquiry will not be whether platforms are useful in the abstract, but whether a genuine FRAND alternative existed for the patents and market in question. A bilateral licence that exists only formally, is not actually offered, or would require an implementer to reproduce thousands of negotiations cannot necessarily defeat the platform claim. Conversely, if commercially workable bilateral routes are genuinely available, the case that only the platform licence can be FRAND becomes more difficult. The judgment opens the inquiry; it does not predetermine its answer.

Determination is not formation

Judge Sabotier's intervention exposes an issue concealed by the English vocabulary of a "right to a FRAND licence". There are at least three distinct juridical operations: identifying the content of the undertaking; determining the consequences of non-performance; and forming the downstream licence. They may converge in practice, but they are not conceptually interchangeable.

The stipulation pour autrui answers the source question. It explains why an implementer that was not a party to the ETSI contract may directly invoke the SEP owner's undertaking. Article 1206 gives the beneficiary a right to the promised performance. It does not itself define that performance as an already executed licence instrument.19

The wording and structure of Clause 6.1 confirm the distinction. The declarant states that it is prepared to grant irrevocable licences on FRAND terms. That promise has a determinate normative object — FRAND access — but its detailed contractual implementation remains to be concretised. It is not equivalent to a complete offer capable of acceptance by the mere implementation of the standard. Nor does it resemble the unilateral promise described in Article 1124, where all essential terms are fixed and only the beneficiary's consent is missing.20

Article 1163 prevents the opposite error. The fact that the royalty and other terms are not numerically fixed in advance does not render the undertaking void or merely aspirational. A performance is determinable where it can be inferred from the contract, usages or prior relations without a new agreement on its content.21FRAND is accordingly justiciable. Expert evidence, comparables, top-down analysis, non-discrimination evidence and commercial practice may allow the court to identify compliant terms. But those evidentiary operations determine the content of performance; they do not erase the separate rules governing contractual formation.

Article 1221 leads to the same conclusion. Execution in kind is a remedy for breach of an existing obligation. It cannot enlarge the object of that obligation. A court may require the SEP owner to perform the undertaking, including by presenting or maintaining a conforming offer and by refraining from enforcement conduct inconsistent with FRAND access. Where the implementer accepts the judicially determined terms, or where both parties have previously agreed to be bound by the determination of a court or tribunal, the licence may then be formed and its execution compelled. What should be resisted is the claim that the stipulation pour autrui, by itself, necessarily authorises a court to manufacture the entire bilateral licence irrespective of acceptance, procedural undertaking or the precise relief sought.22

This is not a concession to hold-out. The SEP owner cannot invoke the absence of a completed licence after frustrating the very process by which compliant terms were to be made available. Good faith governs performance; patent remedies can be withheld; damages can be calibrated; and a refusal to grant on terms accepted or validly determined may be specifically remedied. The point is narrower: one should not confuse the enforceability of the undertaking with the fiction that the licence has existed all along.

Birss J's treatment in Unwired Planet remains instructive. He accepted that the undertaking is enforceable by implementers and that FRAND terms are objectively justiciable. He nevertheless doubted that either party could simply be compelled to enter a contract against its will and expressly concluded that the legal effect of the undertaking is not that the implementer is already licensed. Its immediate effect is remedial: a willing implementer cannot be subjected to a final injunction, whereas an implementer refusing court-determined FRAND terms may be.23

Tesla fits that architecture. Tesla sought declarations as to the licence terms required by the SEP owners' undertakings. The Supreme Court recognised a serious issue to be tried and the utility of declaratory relief. It did not hold that a platform licence already existed, nor that Avanci must be treated as having signed one. The declaration operates at the stage of concretisation. Formation and execution follow according to the parties' undertakings and the ordinary law applicable to the licence.

A judgment can declare that an offer is not FRAND, identify the terms that would be FRAND, require the promisor to make those terms available and determine whether an injunction remains permissible — without collapsing source, performance, formation and enforcement into a single judicial act.

A declaration against an agent owing no independent FRAND obligation

Avanci's position was formally strong. It owns no SEPs, made no declaration to ETSI and owes no independent FRAND obligation to Tesla. The Supreme Court accepted each premise and rejected the conclusion (at [30], [36]-[38], [131]-[134]).

English declaratory jurisdiction does not invariably require a cause of action against the defendant. What matters is the existence of a real legal controversy, a legitimate interest in the declaration, a useful purpose and procedural fairness. Here the underlying legal right was Tesla's asserted entitlement, as beneficiary, to FRAND performance by the participating SEP owners. Avanci was the agent through which that performance was organised and the architect and administrator of the rate being challenged (at [111]-[125], [133]-[139]).

The distinction from Vestel is therefore exact. In Vestel, no legally enforceable right to a FRAND licence had been maintained after the competition-law claim was abandoned; there was no free-standing FRAND claim on which declaratory relief could bite. Tesla, by contrast, pleaded a contractual right under the ETSI undertaking in relation to InterDigital's UK SEPs.24The declaration was not detached rate regulation. It was attached to a legal obligation owed by principals whose agent was before the court.

A platform operator need not assume the underlying obligation in order to become an appropriate, even essential, party to proceedings concerning the way that obligation is being performed. Otherwise the administrator could control the only operative offer while remaining insulated from any judicial assessment of it. Agency would become not merely a mechanism of performance, but a jurisdictional shield.

The fairness objection remains substantial. A declaration concerning the platform terms may affect licensors that are not parties. In Nexus, the Supreme Court recently emphasised the elementary unfairness of altering absent parties' rights without giving them an opportunity to be heard.25In Tesla, the Court managed rather than eliminated that concern. It reasoned that licensors had already entrusted Avanci with designing the rate, accepted a standardised offer and relied on Avanci's expertise. Avanci was therefore the essential party to any assessment; individual licensors could apply to participate and such applications should receive close and sympathetic consideration.26

That solution is pragmatic, but its limits will matter at trial. A declaration between Tesla, InterDigital and Avanci cannot casually rewrite the private rights of every absent licensor. The court will need to define with precision the parties bound, the evidential effect of its findings, and the extent to which a platform-wide rate can be identified without adjudicating rights that are not properly before it. The platform's own governance documents, voting arrangements and authority to amend terms will become central. This is likely to be the most vulnerable part of Tesla's case, not because the FRAND obligation disappears, but because collective performance creates collective procedural consequences.

An obligation that travels with the patent

In addressing Gateway 11, the Supreme Court treated the FRAND obligation and the underlying UK patent as inseparable features of the SEP. It relied on Clause 6.1bis, which directs that FRAND undertakings be interpreted as encumbrances binding successors in interest and requires transfer documents to preserve that effect.27

The formulation reveals the hybrid structure of FRAND. The source of the undertaking is personal and contractual. Its intended effect is asset-linked: the obligation is designed to persist despite changes in ownership. That does not necessarily convert the undertaking into a French proprietary right or a true charge réelle. Clause 6.1bis itself recognises that the language of encumbrance may not operate identically in every legal system and therefore supplements it with contractual transfer obligations.28

The better description is functional. The undertaking is a contractual burden intended to travel with the patent through successive transfers. It qualifies the conditions under which the right may be enforced against implementers. The source remains contract; the persistence is organised around the asset.

This matters directly for platforms. If a transfer of title cannot shed the undertaking, neither can a delegation of licensing functions. The owner does not cease to be promisor because an agent makes the offer. The same obligation remains attached to the exercise of the same patent right. One does not remove an encumbrance by changing the negotiator.

The jurisdictional payload

For practitioners, the remainder of the judgment is immediately operative. The Supreme Court adopted Arnold LJ's characterisation of the licensing claims. Their subject matter was InterDigital's UK SEPs and the terms on which those UK rights must be licensed. The fact that the only FRAND licence might extend to foreign patents did not convert the claim into an abstract worldwide rate-setting exercise (at [169]-[177], [200]).

The Court's argument from symmetry is strong. If a SEP owner sues for infringement and the implementer invokes FRAND, the dispute plainly concerns the national patent. The mirror-image proactive claim should not change character merely because the implementer moved first. Otherwise identical disputes would be characterised by "who fired first" (at [175]).

That characterisation supported service under CPR r 63.14(2): a claim for a licence which, if established, would answer an infringement claim relates to the registered patent. Gateways 3 and 11 were also available, the latter reflecting the intrinsic connection between the patent and the FRAND obligation.29

The Delaware Court of Chancery was not an available alternative forum. On the expert evidence, US courts would adjudicate FRAND terms for US patents, not the UK patents at issue. Once the dispute was correctly characterised, the forum non conveniens analysis therefore fell away without a comparative balancing exercise.30

The Court also answered the charge of forum shopping. Competition between national fora is an inherent consequence of global FRAND determination in the absence of an international tribunal selected by the SSOs. The structural answer lies in institutional design — amendment of SSO policies, agreed arbitration or another neutral mechanism — not in pretending that national patent courts can avoid the problem while national patents remain the point of enforcement.31

This aspect of the decision may prove more consequential than the pool issue. It confirms that proactive implementer claims can be anchored to national patents even where the commercially realistic licence is global and multi-owner. London has not asserted a free-standing power to regulate every global pool. It has held that a claimant invoking an enforceable contractual right in respect of UK patents may ask an English court to identify the licence terms that make use of those patents lawful.

What follows

For implementers, the decision creates a credible English route to test a platform rate before launch and before being sued. It avoids the artificial requirement that the platform administrator itself must have assumed the FRAND obligation. Tesla's alternative case for a bilateral licence from InterDigital was also sufficiently pleaded, so the proceedings can continue on both collective and bilateral tracks (at [146]-[150]).

For platform operators, the judgment creates a paradox. The greater the practical success of the platform, and the more convincingly bilateral licensing is described as impossible or wasteful, the stronger the argument that the platform offer is the only commercially real mode of FRAND performance. Market indispensability is not itself legal obligation, but it may determine what the existing obligation requires.

For SEP owners, the lesson is simpler. Joining a pool does not privatise the rate. The owner remains answerable for the compatibility of the licensing route it selected with the undertaking it gave. It may rely on the agent to perform; it cannot rely on the agent's separate personality to extinguish performance.

The merits trial will have to answer questions the Supreme Court deliberately left open: whether bilateral licensing was genuinely available to Tesla; whether the Avanci terms and rate are FRAND; how any determination can be made fairly in the absence of some licensors; whom the declarations will bind; and how the result translates into an actual licence. These are not secondary details. They are the point at which the Court's procedural opening must be converted into a coherent law of performance.

The central holding is simple. The FRAND undertaking is neither a licence already formed nor an invitation to negotiate without legal consequence. It is an enforceable obligation to make FRAND access available. When SEP owners choose a platform to perform that obligation, the platform does not replace the promise and the agent does not absorb it. The UK Supreme Court has not decided what Avanci's rate should be. It has decided that collective licensing architecture cannot make the rate unanswerable.

One question now moves. Clause 6.1 is an instrument of French law, and the Unified Patent Court will construe it too. It has already accepted that a pool licence may be one route by which a SEP owner performs its undertaking, and the Mannheim Local Division has accepted that its jurisdiction may extend to a counterclaim directed at the conclusion of a licence. Neither addresses the configuration presented here: an implementer taking the initiative, before any infringement claim, to test the rate of a platform to which the patentee has delegated performance, with effects for licensors who are not before the court.32

That question cannot be avoided by a court applying the same undertaking to the same portfolios. If the UPC reads Clause 6.1 as an obligation whose performance may be organised collectively but whose legal standard cannot be delegated, the two systems converge and the choice of forum is procedural. If it does not, the choice of forum decides the result.

• 1Matthieu Dhenne, A Contractual Theory of FRAND: From Private Normativity to Legal Obligation in Technical Standardization (Wolters Kluwer, forthcoming 2026), especially Part II, Chapters 1 and 2.
• 2LES France and APEB, 8th Annual Paris Conference on SEPs and FRAND, Clifford Chance, Paris, 13 November 2025, Judges' Roundtable, programme available at https://www.les-france.org/conferences/conference-frand-2025-8th-edition-of-the-annual-paris-conference-on-seps-and-frand. The programme confirms the date, panel and participation of Judge Nathalie Sabotier. The account in the text of the two propositions expressed orally is based on the author's contemporaneous notes; the author has not identified an official transcript or recording. See also Cyrille Amar, LinkedIn post (14 November 2025), https://www.linkedin.com/posts/cyrille-amar-25871113_frand-apeb-les-activity-7395150030845665280-TqBy (reporting Judge Sabotier's presentation on the Cour de cassation's case law concerning stipulation pour autrui).
• 3French Civil Code arts 1205-1206; Christian Larroumet and Dominique Mondoloni, 'Stipulation pour autrui', Répertoire de droit civil, paras 1-5, 16-17 (Dalloz, February 2017); Gérard Cornu (ed), Vocabulaire juridique, entry 'Stipulation pour autrui' (PUF). Article 1206 provides that the beneficiary is vested with a direct right to the promised performance against the promisor.
• 4ETSI Directives, Rules of Procedure, Annex 6: ETSI Intellectual Property Rights Policy, cl 6.1 (v 52, 5 December 2025) ('ETSI IPR Policy'); French Civil Code arts 1114 and 1124. Article 1114 requires an offer to contain the essential elements of the contemplated contract and to express an intention to be bound upon acceptance; Article 1124 defines a unilateral promise by reference to a contract whose essential elements have been determined and for whose formation only the beneficiary's consent is missing.
• 5French Civil Code art 1163; Dhenne, supra note 1, Part II, Chapter 2. Article 1163 permits the performance to be determinable by reference to the contract, usages or the parties' prior relations, without requiring a new agreement on its content.
• 6French Civil Code arts 1104, 1194 and 1221; Dhenne, supra note 1, Part II, Chapter 2. Article 1221 permits enforcement in kind after notice, except where performance is impossible or where there is a manifest disproportion between its cost to a debtor acting in good faith and the creditor's interest in performance; it does not alter the object of the obligation enforced.
• 7Unwired Planet International Ltd v Huawei Technologies Co Ltd [2017] EWHC 711 (Pat), paras 132-146 and 806(1), 806(5)-806(6); see also Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] UKSC 37, [2020] Bus LR 2422 ('UPSC'), paras 8 and 12-14.
• 8Tesla, Inc and another v InterDigital Patent Holdings, Inc and others [2026] UKSC 27, judgment of 27 July 2026 ('Tesla'), paras 1-6 and 62-65. The Court applied the strike-out test of a real, rather than fanciful, prospect of success.
• 9Tesla, supra note 8, paras 64-65, 93-103 and 135-139. The figures of USD 24 and USD 32 used at para 136 form part of an illustrative hypothesis adopted from Fancourt J's reasoning, not a determination of the FRAND rate.
• 10Tesla, supra note 8, paras 30-35 and 73. The figures of 89 licensors, 86 licensed vehicle brands and the equivalent of more than 7,500 bilateral licences were given to the Court by counsel for Avanci at the hearing: para 73.
• 11Tesla, supra note 8, paras 41-61; Tesla Inc v InterDigital Patent Holdings Inc [2024] EWHC 1815 (Pat), [2024] RPC 29; Tesla Inc v InterDigital Patent Holdings Inc [2025] EWCA Civ 193, [2025] RPC 12 (Arnold LJ dissenting).
• 12ETSI IPR Policy, supra note 4, cls 6.1, 12 and Annex 6 declaration form; Tesla, supra note 8, paras 15-19; UPSC, supra note 7, paras 6-14.
• 13Unwired Planet [2017] EWHC 711 (Pat), supra note 7, paras 106-146; Tribunal judiciaire de Paris (3rd Chamber, 1st Section), case-management order, 6 February 2020, No 19/02085, TCL v Koninklijke Philips NV and ETSI, JURITEXT000043759850 (recording that the parties treated the ETSI undertaking as contractual and relied on stipulation pour autrui); Christophe Caron, 'L'efficacité des licences FRAND. Entre droit des brevets, droit civil et normalisation', JCP G 2013, doctr 584; Nicolas Binctin and Jacques de Werra, 'The Governing Law in Global FRAND Patent Licencing Disputes: A Civil Law Perspective on the UK Supreme Court's Huawei v Unwired Planet Judgment' (2021) 16(11) Journal of Intellectual Property Law & Practice 1220-1228.
• 14European Commission, Guidelines on the application of Article 101 TFEU to technology transfer agreements (2014/C 89/03), para 261(e); US Department of Justice, Antitrust Division, Response to Avanci LLC's Request for a Business Review Letter (28 July 2020), available at https://www.justice.gov/atr/page/file/1298626/download; Tesla, supra note 8, paras 75 and 85-86. These sources corroborate the need for FRAND licensing by the participating owners; they do not replace the French-law source of the individual undertaking.
• 15Tesla, supra note 8, paras 93-94; UPSC, supra note 7, paras 113-114.
• 16Tesla, supra note 8, paras 71-72; UPSC, supra note 7, paras 58-65; Mitsubishi Electric Corporation v OnePlus Technology (Shenzhen) Co Ltd [2021] EWHC 1541 (Pat), paras 26-33.
• 17Dhenne, supra note 1, Introduction and Part I. The distinction is between the private normativity generated by standardisation and the juridical act that converts structured expectations of access into enforceable obligations.
• 18Tesla, supra note 8, paras 73 and 78 (including counsel for Avanci's description of bilateral negotiation as a 'licensing debacle') and para 138 (summarising the evidence and submissions of CCIA, ACT, FSA and MPA).
• 19French Civil Code art 1206; Larroumet and Mondoloni, supra note 3, paras 16-17. The beneficiary's direct right is to the performance promised by the promisor; the mechanism does not determine the content of that performance independently of the stipulation.
• 20ETSI IPR Policy, supra note 4, cl 6.1 and Annex 6 declaration form; French Civil Code arts 1114 and 1124.
• 21French Civil Code art 1163.
• 22French Civil Code arts 1104, 1194 and 1221; Dhenne, supra note 1, Part II, Chapter 2. This leaves open the possibility of a licence being brought into existence where the parties have agreed in advance to be bound by judicial or arbitral determination, where the implementer accepts the terms determined, or where an applicable procedural mechanism authorises the judgment to stand in place of the missing act. The narrower point is that stipulation pour autrui does not, by itself, establish all those additional conditions.
• 23Unwired Planet [2017] EWHC 711 (Pat), supra note 7, paras 139-146 and 806(1), 806(5)-806(6). Birss J stated that he doubted either side could simply be compelled to enter a contract against its will, while holding that the undertaking is enforceable and that a willing implementer cannot be subjected to a final injunction if it accepts the FRAND terms determined by the court.
• 24Vestel Elektronik Sanayi Ve Ticaret AS v Access Advance LLC [2021] EWCA Civ 440, [2021] 4 WLR 60, paras 71 and 78; Tesla, supra note 8, paras 128-134.
• 25Tyne and Wear Passenger Transport Executive (Nexus) v National Union of Rail, Maritime and Transport Workers [2024] UKSC 37, [2025] AC 1222, para 56; see also paras 60-67.
• 26Tesla, supra note 8, paras 140-144; compare Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387, [2010] 1 WLR 318.
• 27Tesla, supra note 8, paras 194-203, especially para 203; ETSI IPR Policy, supra note 4, cl 6.1bis.
• 28ETSI IPR Policy, supra note 4, cl 6.1bis. The clause directs that undertakings be interpreted as encumbrances binding successors in interest, while expressly recognising that such an interpretation may not apply in every jurisdiction; it therefore also imposes contractual duties concerning transfer documents and onward transfers.
• 29Tesla, supra note 8, paras 178-203. On CPR r 63.14(2), see paras 178-189; on Gateways 3 and 11, see paras 190-203.
• 30Tesla, supra note 8, paras 204-216. The conclusion rested on expert evidence that the Delaware court would not determine FRAND terms for foreign patents.
• 31Tesla, supra note 8, para 201, citing UPSC, supra note 7, para 90. On the jurisdictional fragmentation generated by global FRAND adjudication, see Matthieu Dhenne, Anti-suit or anti anti-suit injunctions? That Is the Question, Kluwer Patent Blog (15 December 2020); and Matthieu Dhenne, SEP, FRAND, and Arbitration: A “Paranoid” Quest for Harmony in Global Patent Disputes, Kluwer Patent Blog (29 April 2025).
• 32Huawei Technologies Co Ltd v Netgear Deutschland GmbH and others, UPC Local Division Munich, 18 December 2024, UPC_CFI_9/2023 (holding that an SEP owner may satisfy its FRAND obligations by offering a pool licence and treating the Sisvel pool licence as a possible FRAND route); Panasonic Holdings Corp v Guangdong OPPO Mobile Telecommunications Corp Ltd and OROPE Germany GmbH, UPC Local Division Mannheim, 22 November 2024, UPC_CFI_210/2023, paras 237-241 (accepting in principle that jurisdiction under Article 32(1)(a) UPCA may encompass a FRAND counterclaim directed toward conclusion of a licence). See further Matthieu Dhenne, 'UPC and SEPs/FRAND: Many Questions, Very Few Answers (So Far)', Kluwer Patent Blog (30 July 2024); and Matthieu Dhenne, 'First UPC FRAND Decision: Amours à l'Italienne (Panasonic v. Oppo)', Kluwer Patent Blog (20 December 2024).