Interdigital Technology Corporation v Lenovo Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mellor |
| Judgment Date | 28 June 2023 |
| Neutral Citation | [2023] EWHC 1577 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HP-2019-000032 |
[2023] EWHC 1577 (Pat)
THE HON Mr Justice Mellor
Case No: HP-2019-000032
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
Rolls Building
Fetter Lane, London, EC4A 1NL
Douglas Campbell KC and Michael Conway (instructed by Gowling WLG (UK) LLP) for the Claimants
Ravi Mehta (instructed by Kirkland & Ellis International LLP) for the Defendants
Martin Howe KC (instructed by Lee & Thompson LLP) for Third Party Wistron
Geoffrey Pritchard (instructed by Morrison & Foerster LLP) for Third Party NEC
Sarah Love (instructed by Freshfields Bruckhaus Deringer LLP) for Third Party Apple
Hearing date: 5 th April 2023
APPROVED JUDGMENT ON CONFIDENTIALITY ISSUES
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on the National Archives and other websites. The date and time for hand-down is deemed to be Wednesday 28 th June 2023 at 10.30am.
THE HON Mr Justice Mellor
INTRODUCTION
This judgment contains my decision on the confidentiality issues left outstanding following my FRAND Judgment (in its Confidential version [2023] EWHC 538 (Pat) and in the public version [2023] EWHC 539 (Pat) but generally ‘the FRAND Judgment’ or ‘the Main Judgment’), i.e. whether I should remove some of the redactions in the current public version of the FRAND Judgment. I heard argument on the confidentiality issues at a hearing just before Easter on 5 th April.
As appears from the title page, I received both written and oral submissions from InterDigital and Lenovo as well as from the several interested third parties there listed. In addition, I received written submissions on behalf of Huawei, Innovius, PA Consulting, Acer, ZTE, Samsung, Xiaomi, Doro, Fairphone and a third-party licensee of InterDigital (‘AB’) who has legitimate reasons for remaining anonymous. Although InterDigital notified all those with an interest in information in the FRAND Judgment designated as confidential, some (about 10) did not respond, including LG and a number of the smaller licensees.
I have carefully considered all the submissions made to me but since many were similar if not identical, I can group the protagonists into the following categories:
i) First, InterDigital together with the following ‘Third Parties’: Samsung, Apple, Xiaomi, Huawei, ZTE, Acer, Wistron, NEC, Innovius, AB and PA Consulting. All these parties effectively made common cause to the effect that I should maintain all redactions in the current public judgment, even though each licensee addressed only information confidential to themselves.
ii) Second, and by way of exception to the position taken by other of InterDigital licensees:
a) Doro wrote stating they had no objection to the removal of 3 redactions concerning their PLA or details derived from it. Generally, they were in favour of greater transparency.
b) Fairphone also did not object to the removal of 3 redactions concerning their PLA or details derived from it, although they wished to point out that they did not accept that the numbers used by the parties and experts were correct.
iii) Third, Lenovo submitted that the principles of open justice required the Court to take a quite different approach to that proposed by InterDigital and the Third Parties. Thus, it was Lenovo who was contending that a number of the redactions should be removed, although I should point out that I have not limited my consideration just to Lenovo's contentions because all redactions need to be properly justified.
iv) Fourth, there is the group of licensees who either did not respond at all to the notification sent by InterDigital's solicitors of the opportunity to make representations on confidentiality or positively indicated they would not make any representations.
To assist my deliberations, the redactions were divided into various categories. First, Mr Mehta produced a helpful table summarising the positions taken by each interested party (i.e. each licensee and data provider). Second, in their evidence and submissions, InterDigital used the following 8 categories, some of which I have supplemented by identifying some of the key passages in dispute:
1: confidential royalty rates and unpacked rates.
2: other confidential information factoring into the calculation of the unpacked rates.
3: confidential information concerning the non-financial terms or which cannot be used directly to ascertain the royalty rate.
4: confidential graphs showing trends over time or effective (and other) rates and analysis relating thereto. This category included the graphs in [312], some rates in my commentary on them in [318] and the X1 graph at [586].
5: confidential information to be maintained to retain the anonymity of certain financial information.
6: confidential third party data provider information.
7: information that has been made publicly available elsewhere in the public judgment.
8: confidential miscellaneous material.
Third, in their evidence and submissions, Lenovo addressed the following four categories:
i) First, X1.
ii) Second, the tables in [372], [575] and [577]. Lenovo suggested that anonymised and randomised versions of these tables could be made public, with little or no risk of reverse engineering to attribute specific rates to specific licensees.
iii) Third, information from PA Consulting and other non-licensee third parties.
iv) Fourth, licensee information. For this category, Lenovo divided their submissions under the following headings:
a) Points of principle. In this section, Lenovo developed an argument that the approach taken by Birss J. in Unwired Planet(see further below) ‘should not be a bar to a fresh consideration of the applicable principles’ suggesting that his decision was taken without an adversarial process, with the consent of all parties and giving rise to a novel procedure in FRAND trials. In my view, this was not an accurate characterisation of the approach which Birss J. took. I know from personal experience at the Bar that Birss J. did not require adversarial argument after trial in order to subject claims to confidence to proper and searching scrutiny. It is fair to say that in his oral submissions, Mr Mehta backed off this section of his skeleton, saying it was no part of Lenovo's case that Birss J. was wrong in his approach to confidentiality in Unwired Planet, either as a matter of principle or on the facts.
b) LG – “unique & separate”. Lenovo submitted that the information in relation to the LG 2017 licence was in a separate category to all the other license information, given the importance and centrality of that licence as a comparable.
c) Disclosure of other commercial licensing information. Lenovo emphasised various points such as a lot of the figures are unpacked rates rather than actual, much of the information was historic but finally, that Ms Mattis' evidence for InterDigital was highly instructive. Mr Mehta submitted that the prejudice which she said InterDigital will suffer from disclosure was focussed on the knowledge and information which would be gained by their licensing counterparties for the purposes of negotiations. He submitted this is precisely the transparency concern identified in my FRAND Judgment.
I have not found it necessary to adopt any of these categorisations in their entirety. All were useful at highlighting particular issues. As I said during the hearing, I found the submissions made to me by the counterparty licensees the most illuminating and I am very grateful for their assistance.
APPLICABLE PRINCIPLES
In terms of the applicable principles, it is safe to say in oral submissions there was universal agreement that the applicable principles are those set out by Birss J. in his judgment on confidentiality in Unwired Planet v Huawei [2017] EWHC 3083 (Pat) at [23]–[24] (‘Unwired Planet Confidentiality’). Some reference was also made to earlier case law, including R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2011] QB 218, but all earlier cases were considered by Birss J. and led him to derive the principles he said were applicable to ‘a case like this’ in [23]–[24] which I set out here:
‘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...
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