Intex v. Ericsson and India's first SEP/FRAND framework: the Delhi High Court Division Bench lays down the two-way street

Intex Technologies (India) Ltd v. Telefonaktiebolaget LM Ericsson is the judgment that Indian standard-essential patent litigation had been waiting for since the first Ericsson v. Micromax suit in 2013. For a decade the Delhi High Court's SEP docket had operated on a patchwork of single-judge interim orders — none of them appellate, none of them comprehensive. The 2023 Division Bench changed that. In a single judgment authored by Manmohan, J. for himself and Saurabh Banerjee, J., the Bench laid down the architecture of Indian SEP/FRAND law as it stands.

A drafting clarification is in order at the outset. The 2023 Division Bench was presided over by Manmohan, J. — who in 2023 was sitting as the senior puisne judge of the Delhi High Court and who became Chief Justice of the Court later in the year. The Single Judge whose 2015 interim-injunction order was under appeal was Manmohan Singh, J. — a different judge. The two are routinely conflated in secondary commentary because of the shared first name; they are distinct judges, and the 2023 Division Bench did not contain Manmohan Singh, J.

The architecture of the question

A standard-essential patent is a patent that an implementer must necessarily infringe to comply with a technical standard — 2G, 3G, 4G/LTE, 5G, H.264, Wi-Fi. A patent holder whose patent is essential to a standard adopted by a standards-development organisation (SDO) enjoys a structural bargaining advantage: every device that complies with the standard, by definition, infringes. To prevent that advantage from being weaponised into hold-up, SDOs require participating patent holders to commit, ex ante, to licensing their declared SEPs on fair, reasonable and non-discriminatory ("FRAND") terms. Ericsson's FRAND commitment for its 2G, 3G and EDGE patents is made to the European Telecommunications Standards Institute (ETSI) under the ETSI IPR Policy.

The architecture, then, is consensual on both sides. The SEP holder gives up the right to refuse to license; the implementer gives up the argument that it can use the standard without paying. What had been doctrinally underdeveloped in India — until Intex v. Ericsson — was the second half of that bridge. Indian case law had affirmed the SEP holder's FRAND obligation; it had not, in appellate form, articulated the implementer's reciprocal obligation, nor explained what relief is available when the implementer fails it.

The Division Bench's central analytical move is to lock in that reciprocity. The implementer who refuses to engage, who delays negotiations strategically, who challenges essentiality in litigation while continuing to sell standard-compliant devices, becomes — on the Huawei v. ZTE (CJEU C-170/13) vocabulary the Bench expressly endorses — an "unwilling licensee." Against such an implementer, the SEP holder is entitled to injunctive relief and to pro-tem royalty deposits.

The factual matrix

Telefonaktiebolaget LM Ericsson is the Swedish telecommunications major. Eight of its Indian patents — covering AMR (Adaptive Multi-Rate) speech coding, 3GPP/EDGE features and related 2G/3G technologies — were the subject of the suit. Intex Technologies (India) Ltd was, at the relevant time, a substantial Indian mobile-handset manufacturer importing standard-compliant baseband chipsets and selling 2G/3G feature phones and entry-level smartphones in India.

Negotiations began in 2008. Over six years and more than thirty-six meetings, no licence was concluded. Ericsson's position was that Intex was a willing licensee in form only — sending letters, attending meetings, requesting claim charts — while selling tens of millions of infringing devices in India. Intex's position was that Ericsson had refused to supply the granularity of essentiality evidence on which a FRAND rate could be negotiated, that the rates demanded were excessive, and that Ericsson's conduct constituted an abuse of dominant position under Section 4 of the Competition Act, 2002 — a complaint Intex had carried to the Competition Commission of India, which had directed an investigation by the Director-General.

In 2014 Ericsson sued Intex before the Delhi High Court. The matter came before Manmohan Singh, J. on the Order XXXIX application. By order dated 13 March 2015 the learned Single Judge held that Ericsson had made out a prima facie case of SEP essentiality, validity and infringement; that Intex was acting as an unwilling licensee; and that Intex would deposit, by way of security, a royalty calculated on Ericsson's comparable licences, accruing from the date of suit. Intex appealed; Ericsson cross-appealed on the adequacy of the security. The Division Bench heard the appeals together and delivered judgment on 29 March 2023.

The Bench's reasoning

The Bench's reasoning is organised in five discrete movements.

One — prima facie essentiality, validity and infringement

The Bench reviewed Ericsson's eight suit patents, the ETSI declarations, the AMR/3GPP claim-chart material, and Intex's grounds of invalidity. It held that Ericsson had established a prima facie case on all three limbs: that each of the eight patents was essential to the 2G/3G/EDGE standards as implemented in Intex's devices; that the validity challenges did not, at the interlocutory stage, dislodge the statutory presumption under Sections 13(4) and 48 of the Patents Act, 1970; and that the standard-compliance of Intex's imported chipsets carried the inference of infringement. The Bench was careful to insist that all three findings were prima facie — the merits inquiry at trial remained open.

Two — FRAND as a two-way street

The Bench's doctrinal centrepiece is the reciprocity holding. A FRAND commitment given by an SEP holder to an SDO does not confer on every implementer an unqualified right to use the standard. The commitment is a promise to negotiate and to license on FRAND terms; the correlative obligation on the implementer is to engage in those negotiations in good faith.

The Bench drew explicitly on the CJEU's framework in Huawei v. ZTE (Case C-170/13, 2015) — the SEP holder's notice of infringement, the implementer's expression of willingness to license, the SEP holder's written FRAND offer, the implementer's prompt and concrete counter-offer, the deposit of security where the implementer continues to use the standard pending agreement. The Bench did not transplant Huawei v. ZTE in its entirety; it endorsed the reciprocity principle and adapted the procedural steps to Indian civil-procedure practice. The vocabulary of "willing" and "unwilling" licensee enters Indian law through this part of the judgment.

The factual application to Intex was unforgiving. Six years, 36-plus meetings, no concrete counter-offer, continuing sales of standard-compliant devices, parallel CCI proceedings deployed as negotiating leverage — the Bench held this pattern to be the conduct of an unwilling licensee.

Three — injunctions and pro-tem security against unwilling licensees

If FRAND is a two-way street, the consequence of one party walking off the street is that the protections it would otherwise have enjoyed are forfeit. The Bench held that against an unwilling licensee, the SEP holder is entitled both to injunctive relief under Sections 36 to 42 of the Specific Relief Act, 1963 read with Order XXXIX rules 1 and 2 of the Code of Civil Procedure, and to a pro-tem royalty deposit calculated on the SEP holder's comparable licences as the working prima facie benchmark.

The pro-tem security is the bespoke Indian remedy. It is not a final royalty determination — that awaits trial. It is interlocutory security designed to neutralise the implementer's incentive to spin out the litigation while continuing to sell. The Bench held that the rate at which the Single Judge had calculated the security was inadequate on the comparable-licences material before the Court and doubled the amount. The doubling is the headline outcome that travels through the secondary commentary.

The Bench was emphatic that the comparable-licences inquiry is not an arithmetic exercise. It is prima facie and evidentiary — the SEP holder must place its existing licences on record (commercially sensitive material can be filed under confidentiality club arrangements that the Delhi High Court has by now standardised) and the Court will form a working view of the FRAND rate from that material.

Four — Patents Act jurisdiction is not ousted by CCI proceedings

Intex had pressed two related arguments on jurisdiction: that the pendency of the CCI investigation into Ericsson's conduct constituted a doctrinal bar on the civil court's grant of injunctive relief, and that the Competition Act, 2002 (Sections 3 and 4, read with the antitrust enforcement architecture in Sections 19, 26 and 27) ousted Patents Act, 1970 jurisdiction in respect of allegedly abusive licensing practices.

The Bench rejected both. It held that the two regimes operate in parallel — the Patents Act governs the patentee's exclusionary right and its limits; the Competition Act governs anti-competitive conduct including abuse of dominance. An SEP holder's FRAND obligation is sourced in its ETSI commitment; an alleged abuse of dominance is a regulatory enforcement matter. The civil court adjudicates infringement and FRAND; the CCI investigates and, if it so determines, sanctions abuse. Neither displaces the other.

The Bench's ruling on this point has since been overlaid by the Delhi High Court Division Bench's later judgment in Telefonaktiebolaget LM Ericsson v. Competition Commission of India (2023), which held that the CCI lacks jurisdiction to investigate FRAND-related conduct of SEP holders to the extent that conduct is governed by the Patents Act. The two judgments operate together; the Intex Bench's holding on the existence-of-parallel-proceedings issue is the earlier and narrower of the two propositions.

Five — the cross-appeal: doubling the security

On Ericsson's cross-appeal, the Bench reviewed the comparable licences on record and held that the rate adopted by the Single Judge undershot the prima facie FRAND rate. The Bench accordingly enhanced the security amount, broadly doubling the quantum, with directions for revised deposits and bank guarantees. The increase is grounded in the material on record, not in any new doctrinal principle — but it tells implementers, with operational clarity, that a low Single-Judge security is appealable and that the Division Bench is willing to recalibrate.

The doctrinal contribution

Intex v. Ericsson contributes to Indian SEP/FRAND law on three axes.

The willing-licensee test. The reciprocity principle gives Indian courts a tractable framework for distinguishing implementers who deserve FRAND protection from implementers who are using FRAND as a procedural shield. The five factual indicia that the Bench treats as probative — duration of negotiations, number of meetings, presence or absence of concrete counter-offers, comparability of the implementer's conduct to that of licensees who have settled, continuing sales of standard-compliant devices — are now the working checklist applied in subsequent suits.

The comparable-licences benchmark. The Bench's endorsement of comparable licences as the prima facie FRAND benchmark resolves what had been a procedural dead end in earlier suits — Indian courts had been reluctant to engage with quantitative FRAND-rate analysis at the interlocutory stage because no methodology was settled. Intex makes comparable licences the default. The confidentiality-club regime that has grown around it is now standardised Delhi practice.

Pro-tem security as bespoke Indian remedy. The pro-tem royalty deposit is a doctrinal innovation. It is not a final royalty determination, not an interim injunction, not damages — it is a freestanding interlocutory device that holds the commercial balance while the merits trial proceeds. The remedy has travelled. Nokia v. OPPO (Delhi HC, 2023) applied it; Ericsson v. Lava International (Delhi HC Single Judge, Amit Bansal, J., March 2024 — India's first post-trial SEP merits decision) applied it; Malikie Innovations v. Xiaomi (Delhi HC, April 2026) extended it to a ₹272 crore pro-tem FRAND deposit for 4G/5G implementing devices.

What the Bench did not decide

A few questions were either left open or addressed obliquely.

The merits of the FRAND rate. The Bench's findings on the prima facie royalty rate are interlocutory. The final FRAND determination — the rate at which Ericsson is entitled to be paid for use of its eight patents in India — awaits trial. Subsequent Delhi practice has been to allow trial of FRAND issues to proceed alongside the merits of infringement, but the Intex Bench did not lay down a procedural rule.

The standard of essentiality proof at trial. The Bench's prima facie essentiality finding rested on Ericsson's ETSI declarations, claim charts and standards-compliance inferences. The standard of essentiality proof at trial — whether claim-charts alone suffice, whether they must be supported by independent expert testimony subject to cross-examination — was not separately delineated. That question has been answered emphatically against patentees in the Division Bench's 2026 decision in Bansal v. Koninklijke Philips Electronics NV (Delhi HC DB, C. Hari Shankar and Om Prakash Shukla, JJ., 18 May 2026), which set aside the 2018 Manmohan, J. SEP infringement decree precisely because Philips had not produced for cross-examination the authors of its essentiality certificates.

Patent exhaustion in the SEP context. Section 107A(b) of the Patents Act — the parallel-importation/exhaustion provision — was not engaged on the Intex facts. The Delhi DB in Bansal v. Philips (May 2026) has since held that Section 107A(b) operates in the SEP context where components are put on the market in another jurisdiction by the SEP holder's authorised licensees. The Intex framework will need to be reread alongside Bansal.

Anti-suit and anti-anti-suit injunctions. The Bench did not address the developing line on anti-suit and anti-anti-suit injunctions in cross-border SEP litigation. The Delhi High Court has, in InterDigital Technology Corporation v. Xiaomi Corporation (2021), taken a robust position. Intex does not speak to it.

The doctrinal arc

Indian SEP/FRAND law has been built almost entirely in the Delhi High Court. Ericsson v. Micromax (Delhi HC, 2013) and Ericsson v. Gionee (2013) were the first interim-injunction orders. Ericsson v. Intex (Delhi HC, Manmohan Singh, J., 2015) was the first considered Single-Judge order on SEP infringement and pro-tem security. Koninklijke Philips Electronics N.V. v. Rajesh Bansal (Delhi HC, Manmohan, J., 12 July 2018) was India's first post-trial SEP infringement decree. InterDigital v. Xiaomi (2021) opened the anti-anti-suit chapter.

The 2023 Division Bench in Intex v. Ericsson is the appellate consolidation. It is followed by Nokia v. OPPO (Delhi HC, 2023, pro-tem deposit applied), Ericsson v. Lava International (Delhi HC Single Judge, March 2024 — first Indian post-trial SEP merits decision in 11 years of SEP litigation), Malikie Innovations v. Xiaomi (Delhi HC, April 2026, ₹272 crore pro-tem FRAND deposit), and the Division Bench reversal in Bansal v. Koninklijke Philips Electronics NV (Delhi HC DB, C. Hari Shankar and Om Prakash Shukla, JJ., 18 May 2026), which tightens the essentiality-proof requirement at trial.

The judgment is now cited globally — by Mannheim, Munich and Düsseldorf courts in Germany, by the UK Patents Court and by US district courts in Delaware and the Eastern District of Texas — as the leading Indian authority on FRAND. The "two-way street" formulation has migrated into the international SEP vocabulary.

What practitioners take

For the SEP holder. The Intex framework is the operational template. Begin with notice of infringement that includes claim charts mapping suit-patent claims to standard specifications. Make a written FRAND offer with comparable-licence benchmarks. Maintain a documentary record of every meeting, every offer, every counter-offer (or its absence). Be prepared, in litigation, to place comparable licences on record under a confidentiality-club regime. The willingness inquiry will be decided on this material.

For the implementer. The implementer must do more than express willingness. Intex makes clear that letters, meetings and requests for additional information do not establish willingness; concrete counter-offers, prompt engagement with comparable licences and either the conclusion of an interim licence or the offer of pro-tem security do. An implementer who proposes to challenge essentiality must do so on a developed evidentiary base — generic invalidity grounds will not displace ETSI declarations at the prima facie stage. Parallel CCI complaints will not displace the civil court's jurisdiction; they may, indeed, be treated by the court as evidence of unwillingness if their timing is suspect.

For the drafting of arbitration and dispute-resolution clauses in licence agreements. Where a FRAND licence is concluded, the parties should give serious attention to dispute-resolution architecture — arbitration seat, governing law, confidentiality, the standard of judicial review of any rate determination. Intex leaves the door open to arbitration of FRAND disputes; the contractual architecture will determine whether that door is walked through.

For appellate strategy. The cross-appeal in Intex succeeded. The Single Judge's security was held inadequate and was doubled. Implementers should not assume that a low Single-Judge security is the end of the matter; SEP holders should be ready to cross-appeal on quantum.

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