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Squaring the Confidentiality Ring: CA rules on access to FRAND comparables


In a judgment handed down on 19 November 2020 [2020] EWCA Civ 1562, the Court of Appeal (Floyd, Males and Lewis LJJ) considered the protections to be granted to patent licence agreements which are disclosed in FRAND litigation – i.e. litigation regarding the terms that are fair, reasonable and non-discriminatory for the grant of a licence to standard-essential patents. 

Patent licence agreements are often disclosed in FRAND cases as a source of potential “comparator” data regarding the appropriate terms for a licence to the patents which are the subject of the litigation.  Since, however, these documents may contain information that is commercially confidential (including to non-parties to the litigation), the courts have been asked on a number of occasions to consider to what extent it is appropriate for the scope of disclosure to be limited, usually within specified confidentiality rings.  Such issues may arise increasingly frequently as a result of the Supreme Court’s ruling in the Unwired Planet and Conversant litigation [2020] UKSC 37; see news article here,

In the High Court, Sir Alastair Norris ruled that individuals employed by the Defendants should be allowed to see six agreements that had been disclosed by the Claimants on an “external-eyes only” basis, subject to certain undertakings from the individuals involved; the High Court Judgment is at [2020] EWHC 2641 (Pat).  The Judge rejected a wider challenge seeking the reclassification of all of the agreements that had been disclosed on an external-eyes only basis. 

Dismissing appeals against the Judgment of Sir Alastair Norris, subject to some alterations to the form of undertakings required, the Court of Appeal has given guidance on the principles for the disclosure of confidential material in intellectual property litigation, which will be of wider relevance in other cases.  The principles are set out at paragraph 39 of the Judgment of Floyd LJ.  Their purpose is to balance the interests of the receiving party in having the fullest possible access against the interests of the disclosing party/third parties in the preservation of confidential information.

The judgment is here.

Colin West QC appeared for the Xiaomi Appellants, instructed by Kirkland & Ellis (International) LLP

Daniel Piccinin appeared for the Oppo/OnePlus Appellants, instructed by Taylor Wessing LLP

Sarah Abram appeared for the Respondents, instructed by Bird & Bird LLP

Nicholas Saunders QC appeared for the counterparty interveners instructed by Eversheds Sutherland LLP