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ARTICLE · 25 MARCH 2026

A Step Closer To FRAND Rate Setting In The UPC?

Herbert Smith Freehills Kramer LLP
Herbert Smith Freehills Kramer LLP
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Herbert Smith Freehills Kramer LLP

Herbert Smith Freehills Kramer LLP

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In our recent briefing, Two and a half years of the UPC - Trends and turning points, we highlighted Sun Patent Trust v Vivo Mobile Communication Co., Ltd. and others...

United KingdomIntellectual Property
Andrew Moir
Andrew Moir
David Webb
David Webb
Theo Pickles
Theo Pickles
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In our recent briefing, Two and a half years of the UPC - Trends and turning points, we highlighted Sun Patent Trust v Vivo Mobile Communication Co., Ltd. and others as one of the Unified Patent Court (UPC) Court of Appeal (CoA) decisions to watch in 2026. In that case, Sun has requested that the UPC determine FRAND licence terms alongside its claim for infringement. So far, the UPC has followed the approach of the German national courts, but many commentators have wondered whether the UPC might adopt the UK practice of stepping in to set court determined FRAND licence terms and royalty rates.

On 16 March 2026, the CoA handed down an order which keeps that question alive: it dismissed Vivo's challenge of Sun's request and upheld the Paris Local Division's decision to defer the admissibility of Sun's request for the court to set FRAND terms to the main proceedings. While the CoA doesn't confirm that licence determinations are available in the UPC, the fact that such

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