Acer and ASUS v Nokia: Court of Appeal rules on RAND arbitration offers and implementer standing

The Court of Appeal has handed down a significant judgement in Acer Incorporated & Anor v Nokia Technologies Oy [2026] EWCA Civ 564, upholding English jurisdiction over RAND licence claims whilst granting Nokia a case management stay — on the basis that its so-called "Adjustable Licence Offers" constituted valid offers of licences on RAND terms.

The case arose from Nokia's enforcement campaign against Acer and ASUS, implementers of the ITU-T H.264/AVC and H.265/HEVC video decoding standards. Nokia holds a portfolio of standard-essential patents (SEPs) subject to RAND obligations stemming from declarations made to the ITU-T. Having commenced infringement proceedings in Germany, the Unified Patent Court, the United States, Brazil and India, Nokia offered each implementer an interim licence whose financial terms were largely agreed — but whose final terms would be determined not by the English courts, but by an ICC arbitral tribunal. The implementers, declining to consent to arbitration, sought declarations from the Patents Court as to RAND terms and what licence conditions a willing licensor would offer pending final determination.

Mr Justice Mellor rejected Nokia's jurisdictional challenges, declined to stay the proceedings, and made interim licence declarations in the implementers' favour. Nokia appealed on all three fronts.

Jurisdiction was the more straightforward question on appeal. Lord Justice Arnold, with whom Lord Justices Zacaroli and Peter Jackson agreed, upheld the judge's conclusion that the RAND claims passed through gateway 11 — that the subject matter related wholly or principally to property within the jurisdiction — affirming the earlier reasoning in Tesla v InterDigital [2025] EWCA Civ 192. The Court rejected Nokia's submission that claims which in substance concern a global portfolio cannot be anchored to UK patents, reiterating that patents are territorial rights and that the RAND obligation attaching to a UK SEP carries with it an obligation of global extent. Gateway 16A was not made out — there was no pleaded threat by Nokia to bring infringement proceedings in England and Wales — and gateway 4A fell away for want of sufficiently connected facts between the patent validity claims and the RAND claims.

The more consequential question was whether Nokia's Adjustable Licence Offers deprived the implementers of standing to pursue the RAND claims at all. Nokia's position, refined considerably on appeal, was that an offer of a licence whose terms track whatever an arbitral tribunal determines to be RAND is itself an offer on RAND terms — since the tribunal's award is by definition RAND. An implementer who refuses such an offer refuses a RAND licence and cannot thereafter invoke the court's declaratory jurisdiction. The implementers answered that arbitration is consensual; the ITU-T Declaration contains no arbitration clause; and Nokia could not, in effect, compel arbitration through the back door of a take-it-or-leave-it offer.

Lord Justice Arnold, after some hesitation, accepted Nokia's analysis. The Court found no objection to ICC arbitration as a mechanism for determining RAND terms, and none had been substantiated by the implementers beyond the consent point. Since consent inheres in the implementer's freedom to accept or reject the offer — and refusal carries legal consequences — Nokia had not violated the consensual nature of arbitration. It followed that the RAND claims had no real prospect of success and a permanent stay was appropriate.

The Court acknowledged a conspicuous tension: in the parallel Warner Bros/Paramount v Nokia proceedings, Nokia had agreed before Meade J to accept English court determination of RAND terms. Lord Justice Arnold accepted Nokia's submission that an inherent asymmetry exists — the SEP owner selects the forum in which it chooses to litigate or negotiate — whilst recognising that this sits uneasily with any notion of a level playing field. Whether an implementer could invoke a parallel asymmetry and compel arbitration against a reluctant SEP owner was left expressly open.

The stay was granted conditionally: Nokia must agree that pleadings, disclosed documents, evidence and costs incurred in the English proceedings carry across into any arbitration the implementers ultimately accept. The interim licence declarations were discharged in consequence.

The judgement marks a notable development in the architecture of SEP disputes before English courts. SEP owners with well-structured adjustable licence offers may now be able to foreclose implementer-led RAND proceedings without themselves submitting to court jurisdiction — provided the arbitral mechanism offered is unimpeachable. The extent to which implementers can resist or counteract that strategy remains to be tested.