Victory for Osborne Clarke client Avanci in Court of Appeal today

Today, the Court of Appeal dismissed Tesla's appeal against the High Court's finding that Tesla's claim raised no serious issue to be tried.

Partner and UK Head IP Disputes Arty Rajendra and Associate Director Luke Maunder worked alongside Avanci and EIP in securing this outcome.

Some key takeaways:

1. The majority judgments of Phillips and Whipple LJJ endorsed Avanci's position, finding that there was no basis, contractual or otherwise, to conduct a FRAND determination in relation to Avanci.
2. The contractual ETSI obligation does not mandate collective licensing.
3. Avanci did not assume SEP owners' ETSI obligations.
4. The Avanci 5G Vehicle Platform was endorsed as a commercial alternative to a bilateral FRAND licence that is "a convenient and highly beneficial way for a vast number of SEPs to be offered collectively to the car industry".
5. Tesla's attempt to invoke the representative action jurisdiction was not sustainable.

The judgment sets a clear line in the sand over the scope of the ETSI obligation and is a vindication of the rights of parties to devise creative SEP licensing solutions against the backstop of the right to seek a FRAND licence bilaterally.