A narrower UK–Germany interim licenses gap than rhetoric suggests

Summary: Senior judges from the UK and Germany used the OxFirst 12^th IP and Competition Forum to discuss whether an interim license regime could provide a workable bridge in FRAND disputes—covering the period before courts reach a final determination on rates. Framed explicitly as a thought experiment rather than a policy proposal, the exchange revealed shared concern that the current system struggles with delay, uncertainty, and global spillovers once litigation begins.

The central question was blunt: can courts provide something meaningful, fast, and fair between first contact and final judgment—without distorting incentives or tripping competition-law wires?

What an interim license would (and wouldn’t) be

Mr Justice Meade of the High Court of England and Wales and Chair of the Competition Appeal Tribunal set the scene by clarifying that an interim license would operate before a final FRAND rate is fixed, at a point where uncertainty is unavoidable. But, he argued, that uncertainty shouldn’t be exaggerated. Courts can often assess relatively early whether an offer is at least plausibly FRAND, even if they lack the full evidential record needed to set a final rate.

Judge Fabian Hoffmann of the German Federal Court of Justice (German Supreme Court) was sceptical of any interim solution that simply tries to replicate the eventual outcome. An interim regime, he suggested, only makes sense if it is fast, rough, and based on limited material. He warned particularly against “mechanical” shortcuts—such as defaulting to the midpoint between the parties’ offers—which would only encourage more extreme positions. Any interim figure, in his view, would need to reflect judgment, not arithmetic.

Pressure without punishment

That fed into a broader discussion about incentives. Judge Hoffmann queried how courts could encourage participation in arbitration or interim arrangements without crossing competition-law red lines. Pressure that might be unacceptable when fixing final rates could, he suggested, be justifiable at the interim stage—so long as it makes refusal unattractive rather than punitive.

Mr Justice Meade accepted that, from a UK perspective, speed is essential: interim solutions must be quick to be useful. He added that where parties’ positions are grounded in reality, midpoints can sometimes work tolerably well.

Judge Hoffmann pointed to German concepts that already tolerate provisional outcomes without pretending they are final—such as sections 315 and 317 of the Civil Code, which allow prices to be set subject to judicial or third-party review. They are not interim licenses as such, but they demonstrate that legal systems can live with “provisional pricing” mechanisms.

The enforceability objection

Audience scepticism focused on enforceability: what is the value of an interim license if no one can be forced to accept it, and foreign courts are free to ignore it?

Mr Justice Meade responded that, in the UK, such mechanisms would more naturally take the form of declarations rather than coercive orders. Even so, judicial guidance can shift negotiations materially. He also noted that there is no conceptual reason why a future system could not make entry into an interim regime compulsory—if the legal architecture were built to support it.

Global problems need global answers

Territorial reach proved the most contentious issue. Judge Hoffmann stressed that because FRAND licenses are inherently global, any interim solution would need to operate on the same basis—potentially including a mechanism to neutralise injunction pressure in other jurisdictions. In his framing, once an implementer is rendered “willing”, injunctions should fall away everywhere.

Mr Justice Meade broadly agreed, noting that UK courts increasingly expect implementers to post security at the rate they themselves claim is FRAND—often a substantial sum. Judge Hoffmann added that security has a single purpose: securing the litigation outcome. If the outcome is global, security must be global too.

Past use, SMEs, and accounting uncertainty

The panel also explored whether interim licences should cover past use. Judge Hoffmann warned that one may struggle to recover historic sales prices in practice, while Mr Justice Meade suggested interim arrangements should apply retrospectively, even if the precise cut-off point remains contested.

Concerns were raised about distortive effects—particularly for SMEs—and about the accounting treatment of interim payments. Mr Justice Meade noted that while final FRAND determinations typically apply retrospectively, the revenue status of interim payments remains unsettled. Lord Justice Arnold cautioned against assuming litigation or delay should translate into lower rates, while acknowledging the unresolved risk that smaller firms could be pressured into supra-FRAND deals.

A narrower UK–Germany gap than the rhetoric suggests

Despite differences in legal tools and instincts, both Mr Justice Meade and Judge Hoffmann expressed unease about the gap between first infringement claims and final judgment—and both were willing to explore interim licensing as a potential bridge.

That willingness to engage is itself telling: the practical distance between the UK and German approaches may be less pronounced than the public narrative often suggests—at least when the shared objective is reducing delay and stabilising negotiations in global FRAND disputes.
 

Views expressed at the 12^th IP and Competition Forum are not necessarily those of OxFirst, its employees or affiliates.