Amazon.com, Inc & Ors v Interdigital VC Holdings, Inc & Ors

Mr Justice Meade:

This is my judgment on the First to Fifth Defendants’ (“InterDigital”) CPR Part 11 application challenging the jurisdiction of this Court to hear certain aspects of these proceedings (the “Jurisdiction Challenge”). I have set out the procedural background very briefly below, but a fuller explanation can be found in my recent judgment in these proceedings dated 2 December 2025 ([2025] EWHC 3170 (Pat)).

Mr Lykiardopoulos KC appeared for the Claimants (“Amazon”) leading Ms Osepciu. Mr Bloch KC appeared for InterDigital leading Mr Jones. I am grateful for the help of all the advisers on both sides.

Amazon’s action seeks determination by this Court of global reasonable and non-discriminatory (“RAND”) terms for licences in respect of certain of InterDigital’s patents. They include patents declared essential to standards (“SEPs”) promulgated by the International Telecommunications Union Standardisation Sector (the “ITU-T”). H.264/AVC and H.265/HEVC are the video coding standards of the ITU-T that are material for the purposes of these proceedings.

As is common ground between the parties, declarations made by patent owners to the ITU-T give rise to a Swiss law contract for the benefit of third parties – the “RAND Commitment”.

There is a dispute between Amazon and InterDigital (not for resolution now) as to the nature of the RAND Commitment under Swiss law: whether it entails an obligation to actually offer a RAND licence (as Amazon says), or whether it just entails an obligation to negotiate in good faith (as InterDigital says).

There is also a dispute between the parties (also not for resolution now) as to what patents/claims are to be included in a licence granted on RAND terms. A facet of that dispute is whether declarations made to the ITU-T standards cover not only decoding claims but also encoding claims. For present purposes, it suffices to say that the “InterDigital Video Portfolio encompasses decoding and encoding SEPs, and also certain patents which are not contended to be essential to the above video coding standards (“NEPs”). Amazon says that InterDigital is obliged to license encoding patent claims either because the contractual RAND Commitment requires it on its proper interpretation, or because it would be an abuse of a dominant position under competition law not to do so. Amazon says that the obligation to license the NEPs arises because InterDigital habitually includes them at no extra cost in portfolio licences so it would be discriminatory not to include them.

Amazon and InterDigital agree that these are all matters to be treated as arguable at this stage of proceedings.

The nub of what Amazon seeks through these proceedings is for this Court to declare that it is entitled to a licence to four UK SEPs (the “Challenged Patents”, said to relate to encoding and/or decoding) on RAND terms covering the whole InterDigital Video Portfolio (or alternatively just SEPs), to declare what those terms are, particularly as to price, and to order specific performance so that InterDigital must offer such a licence to Amazon. Amazon says such a licence will be global, will cover encoding and decoding patent claims and NEPs, and will be useful for a variety of reasons explored below, although both parties agree, for different reasons, that InterDigital will not be able to get an injunction against infringement of the Challenged Patents.

With the exception of the Patent Claims (defined below), InterDigital contends that service of these proceedings within the jurisdiction was invalid and ineffective and that permission to serve out of the jurisdiction was wrongly granted and so should be set aside. Alternatively, InterDigital seeks a stay of these proceedings.

The Sixth Defendant (“Thomson”) and Seventh Defendant (“Vantiva”) are companies that made declarations to the ITU-T in relation to certain patents prior to the transfer of those patents to InterDigital. Thomson and Vantiva are not challenging jurisdiction and were not represented at this hearing.

The parties relied on following evidence at this Jurisdiction Challenge hearing:

Amazon purported to serve these proceedings in this jurisdiction as of right pursuant to CPR r.63.14 (claim form relating to a registered IP right), and also obtained permission to serve out, relying on a number of the Practice Direction 6B gateways, most significantly gateway 11 (property within the jurisdiction). InterDigital challenges both.

A significant line of authority going back to Unwired Planet v. Huawei [2020] UKSC 37 (“UPSC”) has held that claims such as Amazon’s are to be characterised not as contractual claims for global (F)RAND licences but as relating to the obtaining of a licence to the UK patents in issue, albeit such a licence would, on the evidence in those cases, be global. Based on that characterisation, CPR r.63.14 and gateway 11 (and others) have been repeatedly held to be applicable to such claims, and the same characterisation has contributed heavily to the failure of jurisdiction challenges/stay applications based on forum non conveniens.

The same line of authority has repeatedly held that this Court may have jurisdiction when the claim is initiated by implementers (as in this case) or by the patentee.

I accept the submission by InterDigital that a number of the judgments in question have been obiter in material parts, but the reasoning in my view has been considered, clear and consistent on all the necessary points and I am not near to being persuaded to depart from it. I think it is correct.

Against this very unpromising background, InterDigital raises basically four matters:

InterDigital helpfully made clear that it ordered the alternative fora as follows in terms of the strength of its arguments and preferences: first, arbitration, then Switzerland, then Delaware.

My main conclusions are as follows.

First, as I have already said, I reject InterDigital’s point i) because I will not depart from the principles decided in the previous cases.

Point ii) fails because InterDigital’s non-enforcement undertaking is not to grant a licence, which is what Amazon claims. There are material differences.

The court’s approach to other fora and the standard and allocation of the burden of proof depends on whether they are considered as part of an application to set aside permission to serve out, as a challenge to service in as of right, or in the context of a forum non conveniens stay.

In the present case, I conclude that Amazon was entitled to serve in as of right under CPR r.63.14, which would mean that InterDigital would have to show an available alternative forum that was clearly and distinctly more appropriate than this jurisdiction.

As to iii) I find below that an offer of arbitration does not transform the position and rather that InterDigital’s proposal would be calculated to force Amazon into arbitration, which ought only to be a consensual process.

As to iv) I find that the particular arbitration proposal made by InterDigital and the characteristics of litigation in Switzerland and Delaware mean that InterDigital has not shown an alternative, available forum that is clearly and distinctly more appropriate.

On the contrary, to the extent that the dispute has a natural forum, the UK is the most appropriate. The reasons for this vary somewhat depending on which other forum is under consideration.

Although not essential to my decision, the competition claims brought by Amazon make it particularly clear that this Court is the appropriate forum.

These proceedings were issued on 29 August 2025 by Amazon.

On 1 September 2025, the Claim Form, Particulars of Claim (the “PoC”), and Grounds of Invalidity were delivered by hand to the First Defendant at the registered UK address for service listed in respect of EP 1,872,587, EP 2,105,025 and EP 3,267,684. Amazon contends that this constitutes good service of all aspects of the claim (save in relation to EP 2,449,782; see further regarding Challenged Patents below) pursuant to CPR r.63.14 as at 3 September 2025 (the “First Defendant Service Date”). On 5 September 2025, Amazon provided further particulars in the form of the RAND Statement of Case, served on the First Defendant at the aforementioned registered UK address for service.

On 17 September 2025, Amazon made an application seeking an order under CPR r.6.36 and r.6.37 for permission to serve the Claim Form, PoC, Grounds of Invalidity, RAND Statement of Case and any other documents in these proceedings out of the jurisdiction on the Defendants. Master McQuail granted permission by an order dated 18 September 2025 (the “Service Out Order”).

Following the First Defendant Service Date and the Service Out Order, InterDigital consistently indicated that it intended to make the Jurisdiction Challenge and agreed with Amazon by when such an application would be made and when a hearing would take place (subject to this Court’s availability).

Since then, there have been several intervening events in these proceedings resulting from anti-suit injunctions granted by the Munich Regional Court I on 26 September 2025 (corrected on 1 October 2025) and the UPC Mannheim Local Division on 30 September 2025 and an anti-anti-suit injunction granted by this Court on 20 October 2025. I have already set out the background to the circumstances in which these injunctions came about in my recent judgment dated 2 December 2025 continuing the anti-anti-suit injunction in these proceedings: [2025] EWHC 3170 (Pat). I say nothing further here about these intervening events, save to note that at a case management hearing on 9 October 2025, I ordered InterDigital to set out promptly an outline of the grounds on which it intended to challenge jurisdiction, which it duly did so on 10 October 2025.

On 31 October 2025, on an application by Amazon, I granted expedition of this Jurisdiction Challenge hearing, as well as the trial to hear Amazon’s claim for final RAND relief (starting, subject to the outcome of this Jurisdiction Challenge, on 15 September 2026).

On 7 November 2025, InterDigital made its Jurisdiction Challenge application.

InterDigital contends that the RAND Claims and Competition Claims (both described below) cannot be served pursuant to CPR r.63.14 as they are contractual or competition claims not concerned with or related to registered rights or property in the jurisdiction. Consequently, InterDigital contends that service within the jurisdiction on the First Defendant by Amazon was invalid. For similar reasons as to claim characterisation, InterDigital contends that the RAND Claims and Competition Claims cannot fall within the gateways relied on by Amazon and consequently the Service Out Order must be set aside.

InterDigital has also put forward international arbitration (for which it has made an offer; see further below), the Swiss courts, and/or the Delaware courts as alternative fora and seeks a forum non conveniens stay. Alternatively, InterDigital seeks a case management stay. At the hearing counsel for InterDigital clarified that the request for a case management stay is only pressed if I were to find that international arbitration is not technically a forum for the purpose of forum non conveniens.

Into this mix, by the end of the hearing, InterDigital has made two sets of undertakings – one to say that it will not assert UK video streaming patents for a period, and the other to say that it accepts and will comply with a rate set in the Swiss or Delaware courts. The former set of undertakings are relied on by InterDigital to purport to remove a UK jurisdictional hook for these proceedings, while the later set of undertakings are relied on by InterDigital to support its forum non conveniens arguments by making the courts in those places “available”.

InterDigital has made clear that if I were to find that any of the First to Fifth Defendants have been validly served with any of the claims comprising the RAND Claims or Competition Claims, then it takes no separate point on the other aspects of those claims or other defendants coming in through e.g., gateways 4A, 3, and/or 9. InterDigital does however maintain a forum challenge in those circumstances.

InterDigital has not taken any point on full and frank disclosure.

General principles concerning service in and service out are now well settled. However there initially appeared to be some disagreement between the parties as to the time at which various aspects of the tests should be assessed (i.e., the date of service in/permission to serve out or the date of the determination of the jurisdiction challenge at this hearing), as well as which side bears the burden for establishing relevant matters at those time points. Getting this clear is important in this case as the undertakings and arbitration offer relied on by InterDigital were only given well after the First Defendant Service Date and the date of the Service Out Order.

Fortunately, by the end of the hearing, the parties were in agreement on these timing and burden points. I set it out in brief.

With service in, a claim can be validly served within the jurisdiction as of right pursuant to CPR r.63.14, if it applies. Whether a claim falls within CPR r.63.14 is assessed as matters stood at the date of purported service (i.e., in this case, 3 September 2025). The burden of establishing that a claim falls within CPR r.63.14 lies with the claimant.

Where there has been valid service in, the defendant may nonetheless apply for a forum non conveniens stay. However, the burden is then on the defendant to satisfy the Court that there is an alternative (i) available forum that is (ii) clearly or distinctly more appropriate to try the claims than the courts of England and Wales. This forum non conveniens analysis is to be done having regard to the circumstances at the time of determining the stay application. If the defendant discharges their burden in their forum non conveniens application, the burden then shifts to the claimant to show that there are circumstances by reason of which justice requires that the trial should nevertheless take place in England and Wales.

As to service out, the three-step test is as set out by Lord Collins of Mapesbury JSC in Altimo Holdings and Investment v. Kyrgyz Mobil Tel [2011] UKPC 7 (“Altimo”). Albeit framed as a test for permission to serve out, it is equally applicable when assessing whether to set aside an order granting permission to serve out (with one additional consideration at stage 3 identified below):

As made clear in the above passage from Altimo, the burden of satisfying the three-step test lies with the claimant. The additional consideration that enters Altimo step 3 in the context of a set aside application is that the defendant can argue that an alternative forum for the claims is available. The defendant has the burden of proving that such an alternative forum is available, but the claimant retains the burden of establishing that notwithstanding this proven alternative available forum, England and Wales is clearly or distinctly the appropriate forum for the trial of the dispute. The set aside application is assessed as matters stood at the date on which permission to serve out was in fact granted (i.e., in this case, 18 September 2025).

Where the Court declines to set aside a service out order, the defendant may nonetheless apply for a forum non conveniens stay. The burden is then again on the defendant to satisfy the Court that there is an alternative (i) available forum that is (ii) clearly or distinctly more appropriate to try the claims than the courts of England and Wales, and this analysis is done having regard to the circumstances at the time of determining the stay application.

Where these timing points fit in is that InterDigital has made several undertakings and an arbitration offer in this case which it wants me to take into account in my analysis of CPR r.63.14, the gateways, and appropriate forum. The earliest of these undertakings was 10 October 2025. Therefore, given when they were made, the only aspect of the analysis in which I can take the undertakings and the arbitration offer into account is when considering whether to grant a forum non conveniens stay (and in the alternative a case management stay in the limited scenario raised by InterDigital). I cannot take them into account when deciding whether the claims fall within CPR r.63.14 and/or the gateways, and when deciding on Altimo step 3. Further, InterDigital, when relying on those undertakings and the arbitration offer, will have to satisfy me that the alternative fora are not only available but also clearly or distinctly more appropriate to try the claims than the courts of England and Wales.

I set out the CPR Part 63 provisions that I was taken to during the hearing.

r.63.14(2)

r.63.1

I set out the gateways that I was taken to during the hearing.

Gateway 11

Gateway 16A

Gateway 4A

In the (F)RAND context, a series of cases over the last few years have considered (a) how claims such as the present are properly characterised, (b) the applicability of the gateways including gateway 11, (c) the applicability of CPR r.63.14, and (d) forum conveniens. They refer back to earlier cases including in particular UPSC and Conversantv. Huawei [2019] EWCA Civ 38 (“Conversant”).

I address them chronologically.

I start with Vestel v. Access Advance [2021] EWCA Civ 440 (“Vestel”)where the Court of Appeal was considering gateway 11. Albeit obiter, Birss LJ considered that if a party claimed to be entitled to be offered a FRAND licence under UK SEPs, he was prepared to accept that such a claim was one which related wholly or principally to property within the UK, notwithstanding that the licence would also involve licensing foreign patents:

Vestel’s problem was that it had not pleaded a legal entitlement to a FRAND licence.

In Nokia v. OPPO [2022] EWCA Civ 947, the Court of Appeal, in the context of assessing the appropriate forum, dealt further with the characterisation of the dispute where the relief is in terms of a global FRAND licence. Both Altimo step 3 and forum non conveniens were in issue:

Arnold LJ then went on to assess connecting factors to the alternative fora, noting that the starting position in such cases over the terms of a global FRAND licence, where the determination of the dispute will depend very largely upon expert technical and valuation evidence, is that there is no ‘natural’ forum to determine it:

I think [66] is of significant relevance to my task in this case.

In Alcatel v. Amazon [2024] EWHC 1921 (Pat), Zacaroli J (as he then was), in the context of gateway 11 and drawing on Birss LJ’s obiter considerations in Vestel, made the following warning (repeatedly quoted since) against confusing the subject matter of the licence that is sought with the subject matter of the claim that is brought:

There is further support for the above principles of characterising the claims in Tesla v. InterDigital [2025] EWCA Civ 193 (“Tesla”), where Arnold LJ (dissenting for other reasons) rejected arguments that bear a strong similarity to the ‘nakedly contractual’ arguments advanced by InterDigital in the instant case against Amazon:

Specifically on CPR r.63.14, Arnold LJ had the following to say, which again bear on many of the arguments raised by InterDigital in the instant case (including its reliance on Actavis v. Eli Lilly [2013] EWCA Civ 517):

Finally, I set out the relevant findings of Leech J (made in the context of CPR r.63.14) in MediaTek v. Huawei [2025] EWHC 649 (Pat):

Mr Bloch rightly accepted that Leech J’s judgment on those points was not obiter. That does not mean it is binding on me but it does mean that I would only depart from it if I were convinced that it was plainly wrong. I am not so convinced, and I think it was not only right but supported by all the preceding and carefully reasoned decisions.

Mr Bloch argued that Brownlie v. Four Seasons Holdings [2017] UKSC 80 (“Brownlie I”) and Four Seasons Cairo v. Brownlie [2021] UKSC 45 (“Brownlie II”) require two different things to be considered: first, is there a sufficient connection to this country so that an English court should assert jurisdiction over the defendant, and, second, is this the proper forum. He argued that the purpose of the gateways goes to the first matter and must not be blurred into the second. He relied in particular on the judgment of Lord Leggatt in Brownlie II at [191]-[197] and the point made at [197] that it would be wrong to disregard the gateways, which provide a threshold standard, and leave everything to forum conveniens.

I accept these principles but they do not go anywhere because none of the cases in the more immediate context of jurisdiction over global FRAND licences based on UK patents overlooked them or is inconsistent with them. They all considered the gateways and/or CRP r.63.14 discretely from forum conveniens, and essentially they all decided that the requirement of sufficient connection is met because when properly characterised the dispute is about UK patents. Moreover I note that in Vestel Birss LJ had Brownlie I specifically in mind (see [18]) and was conscious of the separation between the limbs of the test (see [68]) before moving to the above-quoted passage concerning gateway 11.

Relatedly, InterDigital argued that the obiter analysis of Fancourt J and Arnold LJ in Tesla cannot be right because (as InterDigital’s skeleton said) “[i]t cannot be the purpose and intent of CPR 63.14 to allow claims about the proper construction and enforcement of a contract to be served on a party out of the jurisdiction simply because it owns patents within the jurisdiction on which that contract may have a bearing”.

I disagree with this. It is no trivial matter for a party to have patents within the jurisdiction. Patentees choose to do so and it makes perfect sense that if they do, then they are subject to the jurisdiction of the courts here when it comes to determining the scope and effect of their monopolies. It is entirely sensible that claims about patents can be served in the jurisdiction as of right and in a broader context it is obviously rational for ownership of a patent in the UK to be regarded as a sufficient connection in the sense in which Lord Leggatt was considering that in Brownlie II.

Broadly speaking these can be divided into three groups and were largely dealt with in that manner by both parties during the hearing.

These are captured by Prayers (8) to (11):

InterDigital does not challenge the jurisdiction of this Court to hear these claims and accepts that they have been properly served.

As to the Challenged Patents, Amazon characterises them as follows:

These are captured by Prayers (1) to (6):

InterDigital says that these are “nakedly contractual” claims to a global portfolio licence. Amazon characterises these claims as for a RAND licence to the Challenged Patents on terms that cover the InterDigital Video Portfolio. Given the authorities about characterisation of this kind of dispute, Amazon is clearly right about this. The “nakedly” implies, as I understand it, that Amazon’s claim to a licence is based on its assertion that an implementer has a contractual right to a licence and that that contrasts with claims by patentees where infringement is the gist of the case, so not “naked”. This distinction has failed in the cases considered above.

I was taken to paragraphs 83 to 87 of the PoC, which are as follows:

InterDigital said that because Amazon is only relying on the RAND Commitment as a defence to an injunction (see paragraph 86 above), reliance on it, and the RAND claims generally, fall away given that InterDigital has foresworn seeking any injunction. This is wrong in the light of paragraph 87 of the PoC, which asserts that Amazon will have a defence to infringement generally, therefore including any damages claims. Amazon also says, correctly in my view, that such a licence would quantify and limit its financial liability.

I was also taken to paragraphs 92 and 93 of the PoC, which are as follows:

There are essentially two aspects to Amazon’s Competition Claims.

The first is focused on whether the RAND Commitment originally undertaken by Thomson passed to InterDigital. Amazon says that if it did not, the assignment of the relevant patents from Thomson to InterDigital was void as a matter of competition law.

InterDigital has confirmed, however, that it accepts that whatever RAND Commitment Thomson had, has passed to InterDigital. It should be noted that this is not a concession about the scope of the RAND Commitment, only an acceptance that whatever it was, it binds InterDigital as much as it did Thomson.

Given this confirmation I do not think this part of Amazon’s competition case has any further impact on jurisdiction, and I strongly suspect it will fall away from these proceedings entirely. InterDigital argued it as a matter of whether Amazon has an arguable case for the purposes of jurisdiction; I think it is just irrelevant in any case and will say no more about it.

The second and much more important part of Amazon’s Competition Claims is a contention that InterDigital would be abusing a dominant position if it were to refuse to licence Codec SEPs (defined by Amazon as encompassing both decoding SEPs and encoding SEPs). This is a second string to Amazon’s bow, in case its argument about the nature and scope of the RAND Commitment fails. It is pleaded generally, but is of special importance on encoding patents given InterDigital’s position that those are not covered by the RAND Commitment in any way.

The relevant parts of the pleadings are as follows.

Prayers (7) and (12):

I think (7) has fallen away for reasons given above.

(12), the “Chapter II claim” is supported by Schedule 6 to the PoC:

I think it is important that the market in which InterDigital is alleged to be dominant is the UK and that trade is alleged to be affected in the UK. Both points answer InterDigital’s case that Amazon’s position on jurisdiction perpetrates the Harrods Buenos Aires fallacy. Amazon is not dressing up a claim where the real centre of gravity is outside the jurisdiction just by framing it in terms of English procedure and remedies. Its Competition Claims relate to actual markets in the UK and events affecting trade in the UK.

In the lead up to this hearing InterDigital gave undertakings to Amazon not to assert its UK patents. InterDigital says that those undertakings affect the application of CPR r.63.14, the gateways, and the forum analysis such that there is no UK jurisdictional hook for Amazon’s RAND and Competition Claims. InterDigital also made an arbitration and standstill offer, which it deployed as an alternative forum.

During the hearing InterDigital also relied on undertakings to accept and submit to the jurisdiction of, and comply with any order or outcomes that are made, in the courts of Switzerland or Delaware if Amazon were to bring the same claims as in these proceedings there.

These undertakings were first given as part of InterDigital’s outline of its jurisdiction arguments dated 10 October 2025. A revised version was given in Vary 2 on 7 November 2025 and a further revised version was given in Vary 3 on 28 November 2025. That further revised version is the one that was relied on at the hearing and is as follows (the underline and strikethrough are native to the witness statement, indicating revisions from the 7 November version):

This undertaking explicitly does not provide a licence, which is what Amazon is claiming in these proceedings. It also only lasts until the end of proceedings in which alternative forum Amazon might have to bring its claims if jurisdiction here is refused (the “Period”). Although InterDigital undertakes not to seek damages for acts during the Period, it reserves the right to rely on the UK patents concerned in valuations (for example on a renewal, as Mr Lykiardopoulos pointed out) so the undertaking does not provide the certainty or coverage that a licence would.

For these reasons I do not think that the undertaking can be regarded as meeting or matching Amazon’s claims in this action. In addition, the complexity of what is offered is troubling and I think if I were to accept it as a basis for declining jurisdiction there is every danger that a later argument about it would reveal more shortcomings, or at least leave open a lasting argument that put Amazon in a position where it was much worse off than if it had been able to press ahead with these proceedings and get a licence, if it succeeded.

The arguments before me were somewhat different from those which Leech J had to consider in MediaTek v. Huawei, but I think his approach there, where he refused to treat a similar undertaking as justifying a case management stay, is consistent. In particular, I agree with what he said at [220(6)-(7) and (9)] about the utility of declarations about a licence and the fact that an undertaking would not satisfy the requirement of the ETSI (in that case) FRAND obligation (if such were shown at trial).

An offer was made by InterDigital on 7 November 2025. This offer was revised on 28 November 2025 and that is the version that was relied on at the hearing.

The offer provides an Arbitration Agreement which includes provision for the parties (the Fifth Claimant and the Fourth Defendant) to enter into a final and binding arbitration to settle issues split between two phases, Phase I and Phase II.

Phase I will determine:

As to Phase II (if it proceeds), its scope / issues for determination and procedure are left to be determined by the arbitral tribunal following the Phase I award.

The Agreement provides that the arbitration will commence by InterDigital filing a request for arbitration within seven days of the Agreement. The Agreement provides that the arbitration shall take place under the ICC Rules and that the IBA Rules on the Taking of Evidence in International Arbitration shall apply to the taking of evidence.

The arbitral tribunal for Phase I is to comprise of five arbitrators. There must be one each of a Swiss, United States, German, Brazilian, and English law practitioner. Each arbitrator must be either an ex-Judge of the courts in the relevant jurisdiction or an experienced arbitrator. The Swiss law arbitrator is to be the president / chair of the arbitral tribunal. If there is to be a Phase II, a new panel of three arbitrators would be selected, which could include arbitrators from the Phase I panel.

The Agreement provides that the parties undertake to publish a copy of and comply with the Phase I award, enter into Phase II (if any), and comply with the Phase II award. Other than publication of the Phase I award, the confidentiality of the content of the arbitration and any documents served or disclosed pursuant to the arbitration and any rulings / awards is to be addressed by an order of the arbitral tribunal on application by either party.

As currently drafted, there is no provision for an appeal in the Arbitration Agreement.

The offer also includes a Standstill Agreement, an effect of which is that during the pendency of the arbitration InterDigital must refrain from enforcing any injunction in all jurisdictions which restrain infringement of patent claims that are alleged to be (or, post-Phase I, determined to be) within the scope of the RAND Commitment.

This was first addressed in Vary 3:

This was reduced to a formal undertaking at the end of the first day of the hearing:

Amazon said that this undertaking does not include acceptance that the foreign national courts may decide global RAND terms. However, InterDigital contends that e.g. as a matter of Swiss law the RAND Commitment only requires negotiation in good faith and those points, which for present purposes I assume are arguable, ought to be open to it in any forum. So this point of Amazon’s misses the mark. Further, InterDigital has said during the course of the hearing that even if it were to succeed in arguments on the availability of specific performance, the above undertakings would have the effect that InterDigital would still offer Amazon a licence on RAND terms if those terms were determined in the Swiss or Delaware proceedings.

Amazon further objected that this wording still left it open to InterDigital to make arguments other than what the RAND Commitment means, e.g., as supported by InterDigital’s Swiss law evidence, that under Swiss law declarations of fact are not permitted, and RAND terms would be regarded as a question of fact. I accept this, and it means there is a modest doubt over the reach of InterDigital’s undertaking to “comply … with outcomes” if global RAND terms are in fact set in the foreign jurisdictions. But it is a relatively very minor point and in general I accept that these undertakings do make the Swiss and Delaware courts available fora.

A factor that was critical in UPSC (see [96] to [98]) and in Conversant (see [122] to [126], and in the High Court ([2018] EWHC 808 (Pat)) at [52] to [64]) was that proceedings in the UK would lead to the setting of a global FRAND rate whereas, on the evidence, no other court would do so.

Amazon seeks to deploy the same argument now, and it points out that although InterDigital has agreed to submit to jurisdiction in Switzerland or Delaware, it has not agreed to either of those courts, or an arbitral tribunal, setting global rates.

InterDigital responds that there is no guarantee that any court (or arbitral panel), including this Court, will set global RAND rates.

The basis for this argument is InterDigital’s position that the ITU-T RAND Commitment is only to negotiate in good faith, not a more concrete obligation actually to offer a RAND licence. If that is accepted, InterDigital says, then RAND terms may not be set, wherever the parties’ dispute is decided, be it Switzerland, Delaware, arbitration, or this Court. InterDigital says that it is perfectly fair for it not to agree to global rates being set, because Amazon has no contractual right to have them set.

As I have said above, I am proceeding on the assumption that InterDigital’s position on the nature of the RAND Commitment is arguable. If it is correct, then I agree with the logic of what InterDigital says should follow. In no court or arbitral tribunal can it be guaranteed that a global rate will be set, so that is not a differentiating factor between them.

I agree, however, with the implicit suggestion by Amazon that it might be more likely that this Court would set global RAND rates than a US or Swiss court. For myself I think that is because in the US decisions there has been a general resistance to setting global rates in the absence of consent, which is not dependent on the precise content of the (F)RAND obligation. Swiss courts might go the same way, or not. These are imponderables, though, and I do not think they can form a proper basis as a differentiating factor given the bigger point that no court or arbitral tribunal can be guaranteed to set a RAND rate.

InterDigital says that international arbitration is an alternative available forum. It argues that in circumstances where the Standard Setting Organisations (“SSOs”) and their rules do not stipulate a dispute resolution mechanism, if (F)RAND cannot be agreed (as Arnold LJ has pointed out in his judgments and extrajudicially), parties should agree to resolve their disputes in a “neutral forum” that (InterDigital says) “allows them to tailor the process to meet the needs of their specific dispute”.

InterDigital therefore says that this Court should encourage the parties to use arbitration, in the current dispute, and generally.

InterDigital makes a number of points about the details of the arbitration it proposes, which are addressed below and in particular it points to the possibility of having a Swiss member as president given that the RAND Commitment is subject to Swiss law.

InterDigital also seeks to make a higher-level point, that there is currently disagreement among courts internationally about the right approach to (F)RAND and that an authoritative arbitration of this dispute by a multi-member panel from each of the different schools of thought might resolve some of the disagreements. So InterDigital says that arbitration is in the interest of comity.

Counsel were unable to find any authority about whether arbitration may be treated as an available alternative “forum” for the purposes of jurisdiction disputes such as the present one (in passing, I agree with InterDigital that Fancourt J’s rejection of mediation in Kigen v. Thales [2022] EWHC 2846 (Pat), while clearly correct, is not on point because mediation is facilitated negotiation and not a way for getting a binding decision). This seems surprising but means that I have to approach the matter from basic principles.

I agree that this Court should encourage parties to resolve (F)RAND disputes (indeed, many or most disputes) with careful thought to, and use of, ADR. That includes arbitration. I also agree that it would be welcome if SSOs included a mandatory dispute resolution procedure in their rules, and if that was a suitable form of arbitration then so much the better. InterDigital’s application that is before me, though, is not about a system-level solution. It is about whether this Court is the appropriate forum specifically for the current dispute.

A fundamental feature of arbitration is that it is a consensual process. InterDigital’s approach in the current situation is to tailor an arbitration with the specific objective of trying to match, or improve on, the respects in which the parties’ dispute is connected to the UK or might more suitably be tried here. For reasons given below I conclude that InterDigital has not succeeded and the arbitration proposed is less suitable for a number of important reasons. But even if it had succeeded, what it would be doing is creating a forum of its own choosing that would not otherwise exist and thereby preventing Amazon, if this Court declined jurisdiction or stayed, from continuing in the UK when it otherwise could do so. Amazon would be compelled to arbitrate if it wanted to carry on its claims at all (and not only that but to enter into a contractual relationship with InterDigital, for the arbitration, that it did not want). I think that would be wrong.

I also reject InterDigital’s contention that having a 5-member arbitral panel decide the present dispute would promote international comity by resolving areas of disagreement as to approach between e.g. this Court and the UPC. That would not be its function, for one thing. And in any case, while it is desirable for greater international agreement to emerge, and I think it will, I do not believe a single decision of an arbitral tribunal (where the majority of goings-on will likely not be public) in a single specific case would be anything like as authoritative or persuasive as further decisions of the courts involved, made in the light of each other’s case law as part of a dialogue, and especially further appellate decisions.

In support of this argument, InterDigital also says that arbitration has “the very major advantage … that a court judgment cannot offer: a judgment that takes into account international perspectives”. This is wrong: the courts of the UK, the UPC, Germany, China, the USA and so on all understand the international perspective, but do not agree about some aspects of the correct legal analysis, although there are many things they do agree about.

I do not overlook that InterDigital’s proposal includes that an arbitration would, in the event that the RAND Commitment requires the making of an offer, cover all the patents in its portfolio, so that Amazon would not have to win on the points about the RAND Commitment extending to encoding claims, and InterDigital being obliged to include NEPs. By contrast, Amazon would have to fight those points in any national court. In addition, InterDigital offers a standstill along with an arbitration agreement, so that Amazon would not be at risk of injunctions in national courts during the arbitration (Amazon does not accept the effectiveness of the standstill, at least not entirely).

These might be important points in making arbitration attractive and inducing Amazon to agree to it if it wanted to, but it does not change my analysis of why compelling arbitration by imposing a stay of these proceedings would be wrong.

For reasons which will appear when I consider the connecting factors between this dispute and the various fora, I consider that Amazon’s declining arbitration is reasonable. The main one to my mind is that Amazon wants a fully open, timely, and authoritative decision about the scope and effect of the RAND Commitment.

Amazon points out that InterDigital has proposed that the questions of whether Amazon is entitled to be made a RAND offer and on what terms could be determined in arbitration or in proceedings in Delaware or Switzerland, but that it has not brought or offered to bring those issues into any of the infringement proceedings it has brought.

I agree with Amazon that InterDigital could have tried to bring rate setting determinations into at least some of the infringement claims, perhaps most notably the UPC, which has indicated a provisional willingness to consider deciding global terms (in the Panasonic litigation).

Amazon accepts, however, that it is not necessary for InterDigital to challenge jurisdiction here that it must already have brought its own proceedings covering the same issues somewhere else.

I agree with Amazon that the inference to be drawn is that InterDigital does not want rate setting determined anywhere, in case that gets in the way of its obtaining injunctions, and also that it wants rate setting determined as slowly as possible if it is to be decided at all. The exception is that it will agree to a standstill while rate setting is considered in arbitration (see above), but even there it says that it will argue that the RAND Commitment does not entitle Amazon to be made an offer on RAND terms, so it could end inconclusively.

Although this is unattractive on InterDigital’s part I do not think that on its own it is a significant factor in relation to jurisdiction.

Given the view I have taken of the case law, service in the jurisdiction under CPR r.63.14 was valid.

Again, given the view I have taken of the case law, permission to serve out was validly given because there was no material challenge to there being a serious issue to be tried on the merits and I find that at least gateway 11 was satisfied (it is unnecessary to consider any other gateways separately).

At the time permission was given there was no alternative forum (see below). Given that and the proper characterisation of the dispute, Amazon showed that this was the clearly or distinctly appropriate forum.

I move on to InterDigital’s application for a forum non conveniens stay.

Given my view of InterDigital’s undertakings to submit to their jurisdiction, the Swiss and Delaware courts are available fora as of now. It is possible for a defendant to make a forum “available” by agreeing to submit to jurisdiction there: Lubbev. Cape [2000] 1 WLR 1545.

It could be relevant to setting aside service under the gateways whether either of them was an available forum at the date when service out was permitted (see paragraph ‎44 above). InterDigital did not really press this (indeed said it was a “sterile” dispute), and majored on whether they are available now.

I will nonetheless decide it in case it should matter on any appeal since in theory it could have the consequence that Amazon would have to show that the UK was the clearly or distinctly appropriate forum.

In relation to Switzerland, the relevant provision is the Swiss Federal Act on Private International Law (“PILA”).

Art. 5 of PILA provides for jurisdiction by agreement. I will accept for present purposes that InterDigital’s undertaking to submit to Swiss Jurisdiction would amount to sufficient agreement by it, and that Amazon cannot prevent availability just by refusing to consent itself, but it is not of relevance to the situation at the time when permission to serve out was given (see paragraph ‎46 above).

InterDigital relied on Art. 113 of PILA as conferring jurisdiction at the time of permission to serve out. That is based on the place of characteristic performance of the contractual obligation (i.e., in this case, characteristic performance of the RAND declaration). Dr Holzer (InterDigital’s Swiss foreign law expert) is of the opinion that the characteristic performance is the issuance of the declaration, and consequently the place of performance is Switzerland (i.e., the seat of the ITU-T). I disagree. I prefer and accept the evidence of Ms Dorigo (Amazon’s Swiss foreign law expert) that what amounts to the characteristic performance of the RAND declaration is the obligation to conclude or negotiate a RAND licence with a third party beneficiary of the RAND declaration. I accept Ms Dorigo’s evidence that a Swiss court would not regard the place of performance of that relevant obligation to be in Switzerland, and that makes sense. None of the parties to this dispute are domiciled in Switzerland, nor is the dispute concerned with performance of a licence to Swiss patent rights.

InterDigital also relied on the fact that the ITU-T is domiciled in Switzerland. That is a red herring since the ITU-T is not an actual or prospective party and nothing it does is said to be performance of any relevant obligation.

InterDigital tried even less hard to show that Delaware was an available forum at the date when service out was permitted. I accept and prefer Amazon’s evidence that the Delaware court would not entertain a global rate setting claim in the absence of InterDigital’s consent. That is why InterDigital relies on its later undertakings.

In the lead up to and during the hearing, the parties advanced a multitude of arguments in favour of their chosen forum/fora and against the other side’s. These arguments were spread across several pieces of evidence, written submissions, and oral submissions, and were understandably frequently revised given the rapidly shifting nature of this litigation. In order to consolidate matters, I asked the parties to prepare two lists at the end of the hearing. Amazon prepared a list of what it considered to be connecting factors between this dispute and England and Wales, to which InterDigital then provided reply comments. Similarly, InterDigital prepared a list of what it considered to be connecting factors between this dispute and international arbitration, Switzerland, and Delaware, to which Amazon then provided reply comments. I outline and address the points raised below.

However, I have noted the observation of Arnold LJ in Nokia v. OPPO that disputes of this kind may be seen as having no natural home. Were that the case, InterDigital would lose because it bears the burden of showing that there is another forum which is clearly or distinctly more appropriate than this Court. So in a sense I am assessing the parties’ asserted factors in the alternative. I must also, though, bear in mind the reliance that Amazon puts on the Competition Claims; Arnold LJ was not considering those, and it must be considered whether they have a closer connection with this jurisdiction.

Amazon relies on its position that the RAND Claim is for a licence to the Challenged Patents (i.e., UK patents) and concerns the amount that must be paid to work the standards in the UK. Amazon also argues that the claim requests declarations of non-infringement of the Challenged Patents. InterDigital’s reply is effectively the same as its argument to do with characterisation of the claims for the purpose of CPR r.63.14 and the gateways. However, counsel for InterDigital accepted at the hearing that if InterDigital has lost the argument on the characterisation of the claims at an earlier stage of the analysis, it cannot be reargued in this context.

Amazon further argues that given that certain acts of encoding are undertaken in the UK for Prime Video for both the UK and for many European countries, and given that the Second Claimant, Amazon Digital UK Limited, is the key entity in the Amazon group for the Prime Video business across Europe, a licence to the Challenged Patents or a licence to the encoding claims in the UK directly affects Amazon’s substantial UK business. I agree with this, and this factor has some weight.

InterDigital counters the above argument on Amazon’s business by pointing to the fact that Amazon’s trade in the UK is dwarfed by its trade in the USA, which InterDigital contends is Amazon’s largest market. This balances the scales when comparing with Delaware but has no relevance to Switzerland.

InterDigital points out that a number of the parties are US corporations and three are registered in Delaware. In some cases domicile is important but in the present case I do not consider that it has any practical significance and although some of the parties are US corporations, others are not.

InterDigital runs two positive cases. First, it contends that an arbitration would not be applying foreign law, as the president of the arbitration will be a Swiss legal expert. Consequently, it says, this would be an advantage over England and Wales which would require evidence of Swiss law to interpret the ITU-T RAND Commitment (a Swiss law contract). Second, similarly, it contends that the Swiss courts would be applying their own national law when interpreting the ITU-T RAND Commitment.

As to arbitration, Amazon makes the point that pursuant to the arbitration offer, Phase I (where the interpretation of the ITU-T RAND Commitment would be decided) provides for a panel of five arbitrators, only one of which is a Swiss law expert. Thus, evidence of Swiss law would still be required. Moreover, the panel would also require evidence of UK competition law, as only one of the five arbitrators would be an English law expert.

As to the Swiss courts, Amazon says that the Swiss law points are relatively discrete, and the interpretation of the ITU-T RAND Commitment is currently being considered by the English Court in Acer, ASUS, and Hisense v. Nokia, in which judgment is awaited on jurisdiction and interim licence matters. Amazon also makes the point that the Swiss courts would have to apply English law to the related UK competition law claim.

As to the Delaware courts, InterDigital does not run any positive case on applicable law as a connecting factor. Instead, it runs a defensive point that both the Delaware courts and English courts would be applying foreign law and thus this factor is neutral in that respect. Amazon disagrees and makes the point that while that may be true as far as Swiss law and the ITU-T RAND Commitment are concerned, that is not true when it comes to the UK competition law claim, where the Delaware courts would be applying foreign law and the English courts would be applying national law.

I do not think that foreign law being applied is a very strong factor either way, but I agree with Amazon that establishing Swiss law would be a fairly minor task in the UK, and that dealing with UK competition law in any other forum would be an appreciably bigger task for that forum. So overall this is a modest factor in favour of this jurisdiction.

Apart from the issue of the applicable law, there are factual issues to the competition law claims. Amazon has specifically pleaded markets in the UK, and effect on trade in the UK. I do not doubt that a foreign forum (including an arbitral tribunal) could assess these issues, but they have a really material connection to this jurisdiction. So I assess this as a significant factor in favour of this jurisdiction.

InterDigital advances this as a positive factor in favour of the Delaware courts. InterDigital says that principally US based witnesses would not have to travel for the litigation. Amazon however contends that there is no evidence that relevant individuals are in Delaware (or even on the East Coast of the US). Amazon also contends that the witnesses, disclosure, and evidence about encoding practices in the UK (relevant in particular for the Competition Claim) are likely to be from the UK and consequently this factor favours England and Wales.

As to arbitration, InterDigital says that Amazon can choose the law and place of the arbitration as between Paris, Geneva, and London, and can therefore be presumed that the availability of witnesses and documents and the language of the proceedings will be maximally advantageous to Amazon, and at least no less convenient than London as one of the options. The parties seem to be agreed that this is a neutral point.

As to Switzerland, Amazon contends that there is no evidence that any of the documents or relevant witnesses in this case are written in or speak French, German, Italian or Romansh (the official languages of the Swiss courts), and are instead highly likely to be written in or speak English. Having these proceedings conducted in a non-English language is a disadvantage to these particular parties according to Amazon. InterDigital acknowledges that this is a disadvantage over litigation in the UK for witnesses for whom English is the first language, but an advantage for witnesses for whom French is the first language.

I do not think there is a factual basis for thinking that any of these points make much difference as between the various fora, except that I think it would be a non-trivial inconvenience for the case to be heard other than in English. So that is a point against Switzerland.

Amazon advances a positive case about the fact that the English courts have substantial experience of addressing (F)RAND issues, including numerous interim applications and case management decisions in both ETSI and ITU-T contexts, including relatively substantial experience of FRAND valuations.

InterDigital primarily takes a defensive position on this matter for all its proposed fora, saying that these are not relevant factors absent a suggestion that the experience of the court/arbitral tribunal would mean that substantial justice cannot be done. I agree with this and I think that the judges or arbitrators who would hear the dispute can be assumed to be experienced at complex valuations, even if not (F)RAND ones. I note that Arnold LJ expressed a similar view in Nokia v. Oppo.

Amazon takes the point that this Court is able to hear the trial on Amazon’s claim to final RAND relief (starting 15 September 2026, subject to this Jurisdiction Challenge) before (or shortly after) decisions are delivered in InterDigital’s injunction actions abroad (Germany, UPC, Brazil). Thus Amazon says that if successful in its claim for final RAND relief it may have a defence in those infringement proceedings abroad. At the very least, Amazon says, it can be a matter that may be considered by those foreign courts in considering whether or not to grant an injunction and/or can assist settlement negotiations. Amazon says that a stay of the proceedings in this Court would potentially jeopardise any RAND determination ever taking place.

Initially, InterDigital primarily took a defensive position on this matter for all its proposed fora, saying that this is not a relevant connecting factor absent a suggestion that the timings of the proceedings would mean that substantial justice cannot be done. But in oral submissions, Mr Bloch accepted, correctly I think, that this was a relevant advantage of the UK.

As to relative delay and arbitration there is an additional nuance: InterDigital takes the point that there is a standstill offer as outlined above. Amazon however responds with a rather technical point that while the Standstill Agreement as currently drafted prohibits the enforcement of any injunctions pending the Phase I Award, after the Phase I Award, the offer provides that injunctions cannot be enforced on the basis of any patent claims that have been determined in the Phase I Award “to be within the scope of the ITU-T RAND commitment”. This wording, Amazon says, means that InterDigital is free to enforce any injunctions prior to a Phase II Award on the basis of encoding claims held in Phase I to not be covered by the RAND Commitment but should nonetheless be licensed for other reasons, such as UK competition law. Since I see no reason why the arbitral tribunal could not consider all the issues if it were to take on the dispute, this point is at best a weak one, so the timing point only bites in relation to the Swiss and Delaware courts, where InterDigital does not offer a standstill.

I do however note that the structure of the proposed arbitration is overly complex, consisting of two phases as outlined above, with two different panels having to be constituted (a 5-member and a 3-member) at the beginning of the phases. This structural complexity will likely be coupled with several interim procedural skirmishes. All of this will no doubt introduce significant delay to instituting the arbitration and final resolution of the underlying dispute.

Amazon relies on the fact that English courts provide for disclosure of comparable licences. Amazon argues that these are particularly essential in (F)RAND determination cases, as they are crucial to ensure fairness and to ensure that the non-discriminatory principle can properly be put into effect.

InterDigital again primarily takes a defensive stance, that the point only matters if it is a basis for thinking that substantial justice could not be done in another forum.

On the evidence, I do not think there is any reason to suppose that adequate disclosure of comparables would not be available in arbitration or in Delaware.

As to the Swiss courts, InterDigital acknowledges that while disclosure and expert evidence are available in Swiss litigation, Swiss courts do not compel disclosure but rather form adverse inferences from non-provision of relevant documents. I have some doubt whether an inference could substitute for appropriate disclosure, but not enough to think that a Swiss court could not provide substantial justice. So this factor is not a differentiating one for any forum.

Amazon relies on the fact that English courts operate on open justice principles, meaning that the default position is that hearings are conducted in public and judgments are public. Amazon says that this is important in respect of the nature of the ITU-T obligation, the scope of any licence (including whether it covers encoding claims) and the appropriate rate setting methodology for streaming services.

InterDigital argues that litigation in Switzerland and Delaware is no less cognisant of open justice, and Amazon seems to accept that this factor is neutral in this respect.

As to arbitration, at the hearing, InterDigital relied on the fact that the arbitration offer provides for the Phase I Award to be made public. In the latest round of documents received, InterDigital made clear that it would agree to the Phase II Award being made public as well subject to confidentiality redactions. Amazon, in its reply, takes the point that having the awards public is not the same as having the proceedings undertaken in public and would still mean that significant documents, decisions, and key reasoning of the tribunal would not be open. In addition, it cannot be assumed that the redactions in an arbitration would be no greater than redactions to a court judgment. I note that InterDigital has not committed to agree that the arbitration would, overall, be as public as proceedings in this jurisdiction. I think Amazon is entitled to fully open justice if it wants, and its point that it is especially important to have public decisions on ITU-T RAND with the most transparent proceedings towards them is reasonable and legitimate.

Therefore this factor significantly disfavours arbitration.

Amazon also relies on the fact that InterDigital has previously invoked the jurisdiction of this Court (in a different (F)RAND case). Amazon says this evidences this Court’s suitability for a case of this nature. This is a second-order consideration and I think I should directly and objectively address the relative characteristics of the various fora.

There is an array of considerations. Some apply generally and some to different fora differently, but overall for each alternative forum it is less appropriate than this jurisdiction. The factors positively favouring Switzerland and Delaware are trivial and in each of those cases the factors favouring this jurisdiction are, I consider, appreciably stronger. I have rejected arbitration at the outset because it should only be a consensual process and would be less authoritative than court determinations, but even if that were not so the various factors against it (in particular the open justice and complexity points and the need to deal with UK competition law and facts) are significant.

InterDigital only ran this faintly and as a hedge against my potentially finding that although arbitration was otherwise attractive it was not “technically” an available forum so that jurisdiction could not actually be declined in its favour. Since that is not the basis on which I have rejected arbitration, case management stay does not arise.

In any event, although the precise characterisation of the test for a case management stay might be debated (as to whether the standard is “rare and compelling”), at the very least significant factors in favour would need to exist and in the present case they do not, especially given that no arbitration even exists at the moment, that instituting one would take considerable time, and that Amazon has a real and reasonable desire for a decision sooner rather than later.

InterDigital makes a couple of final overarching points that it submits are relevant factors when considering exercise of jurisdiction.

The first it says is that as a matter of interests of justice I should factor in the “slew of implementer led claims before the English court”. It says that such claims are taking up a lot of court time and that must be a pressure both on the court and other court users, particularly because so many of them are the subject of orders for early trials or expedited trials. InterDigital relies on what Bright J said at [12] in Magomedov v. TPG Group Holdings [2025] EWHC 59 (Comm), to put forward a proposition that that is a factor to take into account when considering jurisdiction. As I said at the hearing, I think what Bright J was referring to there was that particular case being enormous. I do not think that he was talking about a category of litigation placing a burden on the court such that it should take a particular view on jurisdiction on that basis. Nonetheless, as Bright J noted in that same paragraph “[i]f this court has a responsibility to decide claims, it will do so, no matter how challenging that may be.”

The second is really a comity point and I have already addressed comity at paragraph ‎121 above.

InterDigital’s Jurisdiction Challenge fails. Service as of right under CPR r.63.14 and permission for service out were each appropriate; a forum non conveniens stay is not appropriate and nor is a case management stay.