David Rose, Head of the IP Group, has provided comments to Law360 on the recent Court of Appeal decision in Tesla v Interdigital and Avanci where the majority of the Court rejected Tesla's appeal against a decision refusing it permission to pursue proceedings seeking a global FRAND (fair, reasonable and non-discriminatory) licence relating to its planned launch of 5G-enabled vehicles in the UK.  In particular, the majority of the Court concluded that, in its position as pool administrator for the 5G wireless platform, Avanci was not subject to the same obligations to offer licence terms which are FRAND as the members of its platform.
Accordingly, as an implementer, Tesla had a choice – to negotiate with Avanci whilst accepting that it is not bound by the FRAND obligation, or to negotiate with the underlying owners of the relevant standard essential patents on a bilateral basis (in which scenario, those owners would be bound by the FRAND undertaking).
In the Law360 article, David comments on the divergence between the majority and minority judgments in the Court of Appeal, describing this as a 'very stark' split in the Court. He further notes that, given Lord Justice Arnold (who gave the minority judgment) has an extensive background in determining patents and FRAND disputes, the firmness of the approach adopted by the majority is particularly striking.  
Law360 (subscription required)