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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> InterDigital Inc & Ors, In the Matter Of (Re Optis Cellular Technology LLC & Ors v Apple Retail UK Ltd & Ors) [2025] EWCA Civ 1263 (07 October 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/1263.html Cite as: [2025] EWCA Civ 1263, [2025] WLR(D) 529 |
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2025] EWCA Civ 1263 | ||
CA-2024-000501 CA-2024-001757 and CA- 2025-001685 |
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
THE HONOURABLE MR JUSTICE MARCUS SMITH
HP-2019-000006
Strand, London, WC2A 2LL |
||
2025 |
B e f o r e :
LORD JUSTICE BIRSS
and
LORD JUSTICE ZACAROLI
____________________
| INTERDIGITAL, INC. (CA-2024-000489) QUALCOMM INC. (CA-2024-000498) NOKIA CORPORATION (CA-2024-000501) and (1) GOOGLE LLC (2) HUAWEI TECHNOLOGIES CO. LTD (3) LG ELECTRONICS (CA-2024-001757) |
Third Party Appellants |
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In proceedings between: |
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| OPTIS CELLULAR TECHNOLOGY LLC and OTHERS |
Claimants |
|
| - and - |
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APPLE RETAIL UK LTD and OTHERS (CA- 2025-001685) | Defendants and Appellants |
____________________
Sarah Abram KC (instructed by Quinn Emanuel Urquhart Sullivan LLP) for Qualcomm Inc
Henry Ward (instructed by A&O Shearman Sterling LLP) for Google, Huawei and LG Electronics
Brian Nicholson KC (instructed by Wilmer Cutler Pickering Hale & Dorr LLP) for Apple
Thomas Jones (instructed by EIP Europe LLP and Osborne Clarke LLP) for Optis
Hearing date: 9 July
2025
____________________
Crown Copyright ©
2025
by circulation to the parties or their representatives by e-mail and by release to the National Archives.Lord Justice Birss:
2025]
EWCA
Civ
552 dated 1st May
2025.
Civil
Procedure Rules. They are parties to these appeals but that is all.
2025.
During the hearing it became clear that to deal with this matter properly and fairly, the third party appellants needed to amend their grounds of appeal. In addition Apple served an appellant's notice, essentially to address the position of information relating directly to other third parties who were counterparties to licences with Apple but had not appealed. The reason there is no corresponding appellant's notice from Optis is simply because the only counterparty to an Optis licence with relevant confidential terms is Google, who had already appealed. We gave permission for these amendments and for the fresh appellant's notice to be filed out of time.
Background
EWCA
Civ
743 and in the May
2025
judgment in this case (above)). The main question to be settled is the royalty rate to be paid by the licensee to the licensor. This may be a single rate for the world for all standards or it may involve a mix of rates. One important source of evidence relevant to the rate is evidence of the terms of other licences which have been entered into by one or other of the parties. Disclosure of some of them will be given. Each side will select the licences it contends are the best comparable licences. Evidence will be given about these licences including, if need be, accountancy evidence which "unpacks" the licence terms to make the comparison more reliable. This might involve converting a licence expressed as a single lump sum payment into a sum expressed as a percentage of sale price per unit (a so called ad valorem royalty) or as a fixed sum per unit (DPU or dollar per unit). Evidence about the comparability of the licences, which may involve the situation of the parties, the other licence terms and the degree of hold out or hold up involved, may also be given.
2025
appeal (above) - see the introductory paragraphs at [1] to [21] and also [34]-[42] and [90]-[92].
These proceedings
The full judgment of 10 May 2023
The February 2024 judgment on consequential matters
i) Class 1. These possible redactions are defined as "immaterial objective errors in the Judgment to be corrected under the 'slip' rule".
ii) Class 3. These are the actual lump sum figures for licences which are themselves lump sum licences.
iii) Class 4. These are other provisions in the licences, such as the date and the term.
iv) Class 5. This class relates to derived data such as the percentage rates calculated by unpacking the lump sum licences, and the implied lump sum figures calculated by manipulating lump sum data.
EWCA
Civ
840, based on the Trade Secrets (Enforcement, etc) Regulations 2018 (SI 2018/597).
The first issue – lump sums and per unit figures
The various grounds of appeal
2025
Qualcomm also explicitly supported the grounds advanced in Apple's appellant's notice of 10 July
2025.
The oral submissions
EWCA
Civ
12 in which Dyson LJ (with whom Lloyd LJ agreed) held that under the CPR an appellant did not have to have been a party to the proceedings below (at [19]) which was followed in In Re W (A Child) (Care Proceedings: Non Party Appeal) [2016]
EWCA
Civ
1140 (see [41]).
(i) The correct approach
EWCA
Civ 65, Lord Neuberger MR at [134], identified a "very strong presumption indeed" that a judgment should be fully available for all to see but also held, citing Scott v Scott, that this fundamental principle must occasionally yield to other factors. Then at [176] he held that all parts of a judgment should be public unless there is a "very powerful reason to the contrary" or, as Lord Judge CJ put it at [41] such redactions should be "rare indeed".
"Even then however the redactions from judgments (or confidential annexes which amount to the same thing) will be kept to the absolute minimum and claims to confidentiality have to be justified with cogent evidence focussed on the specifics rather than on generalities."
"[23] Unless the public can see and understand a judge's reasons they cannot hold the courts to account. There is therefore a strong principle that all parts of a judgment should normally be publicly available. Nevertheless there are occasions on which judgments may be redacted. Redactions will require powerful reasons, supported by cogent evidence which addresses the details. Generalities will not do. Although redactions will be rare indeed when looking across the legal system in general, certain kinds of proceedings may regularly involve redactions due to the nature of the proceedings and the material involved. In any event however redactions must be kept to the bare minimum.
[24] Factors which will be relevant include:
(i) The nature of the information itself: for example cases in which some redaction may more readily be accepted could include technical trade secrets and private information about family life.
(ii) The effect of the publication of the information. This will be a critical factor. If publication would be truly against the public interest then no doubt the information should be redacted. If publication would destroy the subject matter of the proceedings – such as a technical trade secret – then redaction may be justified. The effect on competition and competitiveness could be a factor but will need to [be] examined critically.
(iii) The nature of the proceedings: for example privacy injunctions and competition law claims may require some redaction while an intellectual property damages claim may not. The point is not that different kinds of case demand a different approach, it is that the balance of factors will change in different cases (e.g. the need to encourage leniency applications in competition law).
(iv) The relationship between the information in issue and the judgment (as well as the proceedings as a whole). Obviously judges do not deliberately insert irrelevant information into judgments but not every word of a judgment is as important as every other word. It may be that some sensitive information can be redacted without seriously undermining the public's understanding of the reasons.
(v) The relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment). For example, a patentee seeking damages for patent infringement on a lost profit basis knows that they will have to disclose their profit margin in the proceedings and that those proceedings are public. A third party whose only relationship with the case is that they are a party to a contract disclosed by one of the parties to the litigation is in a different position."
(ii) Apply the right approach to the financial data
(iii) The remaining issues
Correction of errors in judgments and orders
40.12 (1) The court may at any time correct an accidental slip or omission in a judgment or order.
(2) A party may apply for a correction without notice.
Conclusion
Lord Justice Zacaroli:
Sir Julian Flaux C: