Technology and AI
A 5G patent is valid, essential and infringed, and only the licence terms are left
By Staff Writer | 31 August 2026
Judgment in the first technical trial of a standard essential patent dispute was handed down on Friday. Essentiality and infringement were conceded before the hearing, so validity was the only question, the burden lay on the defendant, and the defendant lost on all three of its arguments.
The Patents Court gave judgment on Friday 28 August in Samsung Electronics Co., Ltd and another v ZTE Corporation and others, neutral citation [2026] EWHC 2235 (Pat). The patent is EP(UK) 3,934,154, owned by Samsung, with an earliest priority date of 24 February 2017 that nobody challenged. This was Technical Trial A, the first of the technical trials in the proceedings, and it concerned the validity of claim 1 alone.
What shaped the trial was what had already been given away. ZTE accepted that the patent is essential to the 5G standard, and accepted that its 5G enabled devices would infringe in the absence of a licence. That left validity as the only live question, and because a party alleging invalidity has to prove it, ZTE opened the trial and called its expert first. Both sides called a single expert, and closing arguments were heard on 10 and 11 March.
Three arguments, none of them accepted
At paragraph 582 the judge set out his findings in three lines: the patent does not lack an inventive step over the prior art relied on, ZTE's collocation argument fails, and its argument that claim 1 makes no technical contribution fails. Nothing was left standing.
That the Patent is essential to the 5G standard was agreed. Accordingly, I will declare that the Patent is valid, essential and has been infringed by ZTE. In the absence of a FRAND licence, ZTE threatens to continue to infringe.
Mr Justice Mellor, Patents Court, High Court of Justice
A defendant that concedes essentiality and infringement is betting the case on validity. Lose that bet and the only question remaining is the price.
What the concession costs
Conceding essentiality and infringement is a rational way to run this kind of case. It strips out the arguments a defendant is least likely to win, shortens the trial and gets to the point, which in a standard essential patent dispute is always the licence rather than the technology. The cost of the strategy is visible in the last two lines of the judgment. There is now a declaration on the register that the patent is valid, essential and infringed, and a finding that without a licence on fair, reasonable and non discriminatory terms the infringement continues.
The practical reading for anyone whose products implement a published standard is that the technical trial is a filter, not the dispute. The dispute is what a licence to the portfolio is worth, and each technical trial that a patentee wins moves that number. A defendant that has been found to infringe a patent it has already agreed is essential arrives at the licensing argument with the question of whether it needs a licence settled against it.
Five and a half months
The judge closed with a sentence that will be read by more practitioners than the technical reasoning.
Although I have taken a long time to complete this Judgment, I encourage the parties to arrange the form of order hearing in early course.
Mr Justice Mellor, Patents Court, High Court of Justice
Closing arguments were heard on 11 March. Judgment came on 28 August. Five and a half months passed between the two in a dispute where the commercial clock runs on every one of them, and the judge said so himself rather than leaving the parties to work it out from the dates.