UPC_CoA_91/2026 – Ericsson v Transsion

Expert Commentary

Settlement Facts 1. On 6 March 2026, Transsion started infringement proceedings in the Local Division of Lisbon. 2. Before that date, Ericsson had filed a case in the Local Division in The Hague asking the Court to determine FRAND complaint terms for a worldwide cross-license between the parties. The patent invoked in Lisbon belonged to the standard essential patents for which the case in The Hague was filed. 3. The Local Division Lisbon dismissed the request of Ericsson based on R. 360 RoP and R. 361 RoP to dismiss the case, ruling that the requirements for R. 360 RoP or R. 361 RoP were not fulfilled. 4. Ericsson appealed. The Court of Appeal 1. Ericsson filed a R. 265 RoP request for withdrawal of the appeal because of a settlement between the parties. 2. Transsion was asked to respond but did not do so. It has apparently no legal interest in continuing the appeal. 3. Request is granted. Comment It would have been very interesting if we would have had a decision of the Court of Appeal. Is it possible, by filing rate-setting proceedings in a certain Division, to avoid the SEP holder filing in Divisions which are perceived trigger-happy? If you are planning to do that, do not use R. 360/361 RoP but look at Art. 33(2) UPCA!

Full Decision Text

Court of Appeal of the Unified Patent Court UPC-CoA-91/2026 ORDER 11 August 2026 EP 4 123 910 **APPELLANTS (DEFENDANTS IN THE INFRINGEMENT PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE)** 1. Telefonaktiebolaget LM Ericsson (Publ), 21 Torshamnsgatan, Kista, 164 83 Stockholm, Sweden 2. Ericsson Holding International B.V., Stationslaan 222, Platform C, 3rd floor, 4815 GW, Breda, the Netherlands 3. Ericsson Telecommunicatie B.V., Stationslaan 222, 4815 GW, Breda, the Netherlands 4. Ericsson Telecomunicações, Lda., Lagoas Park, Edifício 4, Piso 0, 2740-267 Porto Salvo, Portugal represented by Wim Maas, Winston Taylor N.V. **RESPONDENT (CLAIMANT IN THE INFRINGEMENT PROCEEDINGS BEFORE THE COURT OF FIRST INSTANCE)** Shenzhen Transsion Holdings Co. Ltd., Unit 1, Floor 24, Chuanyin Building, No.8, Xianyuan Road, Xili Sub-district, Nanshan District, 518000, Shenzhen City, People’s Republic of China represented by Andreas Kramer, Powell Gilbert LLP **PATENT AT ISSUE** EP 4 123 910 **DECIDING PANEL** Panel 1c Klaus Grabinski, presiding judge and president of the Court of Appeal Paolo Catallozzi, legally qualified judge and judge-rapporteur Peter Blok, legally qualified judge **LANGUAGE OF THE PROCEEDINGS** English **IMPUGNED ORDER OF THE COURT OF FIRST INSTANCE** Order of the Court of First Instance of the Unified Patent Court, Lisbon Local Division, dated 26 May 2026 Number attributed by the Court of First Instance: UPC-CFI-850/2026 **SUMMARY OF FACTS AND PARTIES’ REQUESTS** 1. By Statement of Claim lodged on 6 March 2026, the respondent commenced infringement proceedings before the Lisbon Local Division on the basis of the patent at issue, seeking, inter alia, a permanent injunction and related corrective measures against the appellants. 2. Prior to the commencement of those proceedings, the appellants had brought proceedings before, inter alia, The Hague Local Division concerning several patents which the appellants allege to be standard-essential patents. In those proceedings the appellants requested the Court to determine FRAND-compliant terms for a worldwide cross-licence between the parties and sought injunctive relief subject to conditions linked to the conclusion of such a licence. The appellants contend that any such cross-licence would also cover the patent asserted by the respondent in the present action. 3. On 28 April 2026 the appellants applied under Rules 360 and 361 RoP for dismissal of the respondent’s requests for injunctive relief, destruction and recall of products and penalty payments. The appellants argued that those claims were either devoid of purpose or manifestly bound to fail because the FRAND proceedings pending before The Hague Local Division would ultimately result in the appellants obtaining a licence covering the patent in suit. The appellants further argued that the respondent could not legitimately seek unconditional injunctive relief while the determination of FRAND terms was already pending before another division of the Court. 4. By order of 26 May 2026, the Lisbon Local Division dismissed the appellants’ application in its entirety. The Court held that the requirements of neither Rule 360 nor Rule 361 RoP were satisfied. It found, in particular, that the respondent retained a legal interest in pursuing the action and that the appellants’ arguments depended upon future developments in other proceedings, thereby precluding a finding that the claims were manifestly inadmissible or manifestly lacking any foundation in law. Leave to appeal was granted. 5. The appellants appeal against that order. They submit that the Court of First Instance adopted an unduly restrictive interpretation of R. 360 RoP and erred in concluding that the respondent retained a legal interest in the injunctive relief sought. They further argue that, having regard to the FRAND-related claims pending before The Hague Local Division, the respondent’s requests for injunctive relief are manifestly bound to fail within the meaning of R. 361 RoP. In the alternative, they request that the proceedings be stayed pending a final determination of the FRAND-related claims pending before the Hague Local Division. 6. The respondent requests dismissal of the appeal. It argues that the order under appeal correctly applied R. 360 and 361 RoP, that the outcome of the proceedings pending before The Hague Local Division remains uncertain, and that there is no basis for concluding, at this stage, that the claims asserted in the present proceedings are either devoid of purpose or manifestly bound to fail. 7. On 9 July 2026, the Appellants filed an application to withdraw the appeal arguing that the parties had reached an out-of-court settlement and requested that the Court i) declare the proceedings closed; ii) order that the decision be entered on the register; and iii) make no order as to costs, each party bearing their own costs. 8. Despite having been given the opportunity to comment on the application, the respondent did not submit any observations. **GROUNDS FOR THE ORDER** Conditions for permitting withdrawal. 9. Pursuant to R. 265.1 RoP, as long as no final decision has been given in an action, a claimant may apply to withdraw its action. Such application shall not be permitted if the other party has a legitimate interest in the action being decided by the Court. This provision applies mutatis mutandis to the withdrawal of an appeal by an appellant (Court of Appeal, 5 July 2024, UPC_CoA_234/2024, 10x v Curio). 10. In the present case, the application to withdraw the appeal is admissible because no final decision has been issued in these appeal proceedings. The Court of Appeal is competent to decide on the application for withdrawal (Court of Appeal, 15 January 2025, UPC_CoA_637/2024, Avago v Tesla). 11. The application is also permissible. There is no indication that the respondent has a legitimate interest in obtaining a decision on the merits of the appeal. Furthermore, despite having been given the opportunity to comment on the application for withdrawal, the respondent did not raise any objection to the withdrawal requested by the appellants. 12. The Court therefore finds that the requirements of R. 265.1 RoP are satisfied. Costs. 13. R. 265.2(c) RoP provides that the Court shall issue a cost decision in accordance with Part 1, Chapter 5. 14. The appellants have stated, without objection by the respondent, that the settlement agreement provides that each party shall bear its own costs. As neither party seeks a decision from the Court on costs, there is no need for a separate decision on that issue in these proceedings. **ORDER** The Court of Appeal i. permits the withdrawal of the appeal; ii. declares the proceedings UPC_CoA_91/2026 closed; iii. orders that this decision be entered on the register; Issued on 11 August 2026. Klaus Grabinski, presiding judge and President of the Court of Appeal Paolo Catallozzi, legally qualified judge and judge-rapporteur Peter Blok, legally qualified judge

Key Holdings

• An appeal can be withdrawn following a settlement between the parties.
• The Court of Appeal granted a request for withdrawal of appeal under R. 265 RoP due to a settlement.
• The case involved strategic considerations regarding forum shopping for SEP/FRAND disputes.
• The commentary discusses the potential use of Art. 33(2) UPCA for strategic forum choice in FRAND cases, as an alternative to R. 360/361 RoP.

Tags

• Settlement
• Withdrawal
• Appeal
• FRAND
• Standard Essential Patents
• Procedural Strategy
• Jurisdiction

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