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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 a request hasn't been struck out at a preliminary stage means that it remains an option on the table. (Sun Patent Trust v Vivo Mobile Communication Co. and others, UPC_CoA_904/2025, UPC_CoA_905/2025).
The CoA's reasoning is grounded in a more general case management principle: it confirmed that the Court of First Instance has discretion either: (i) to deal with a preliminary objection (in this case Vivo's challenge to the request to determine FRAND terms) as soon as practicable after the claimant (Sun) has provided written comments (or had the opportunity to do so); or (ii) to decide to deal with the preliminary objection in the main proceedings. Here, the CoA elected for option (ii). It is also worth noting that the CoA accepted the first instance view that Sun's main claim consists primarily of the infringement action and that the FRAND determination operates as a necessary step towards the conditional injunctive relief sought (i.e. if infringement is found and Vivo refuses to enter into a licence on FRAND terms only then is injunctive relief sought), making it appropriate to deal with admissibility later. On the CoA's reasoning, it remains the case that FRAND may be used as a defence, rather than as a freestanding cause of action in which the court is asked to set licence terms.
Assuming the rate determination aspect of the proceedings moves forward there remain many unanswered questions about how this might work in the UPC, particularly given the very tight timeframes to get to judgment in the UPC system (targeting <12 months). The UK courts depend heavily on disclosure from the parties and detailed economic expert evidence (and associated oral cross examination) when determining FRAND rates, but it is unclear what evidence will be available to the UPC court.
Finally, it is significant that in this case it is the SEP holder seeking a rate determination – so far in the UPC, it has been implementers making this request and so, even if a rate determination proceeds here, there is no guarantee it will be available in other cases where the SEP holder resists such a request.
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