The English courts began July 2022 by giving two important judgments which will encourage a multiplicity of parallel litigation in Standard Essential Patent (SEP) licensing disputes.
There are obvious downsides to such litigation (e.g., a risk of inconsistent decisions and a waste of legal costs) and these were recognised by the Patents Court (in the Philips case) and the Court of Appeal (in the Nokia case). However, the English court’s two recent decisions recognise these as unavoidable.
Lord Justice Arnold expressed the view (echoing his extra-judicial writing) that “The only sure way to avoid these problems is to use a supranational dispute resolution procedure …. arbitration … but national courts cannot solve the problems inherent in the present system of resolving SEP/FRAND disputes.”
Given how much has changed since its decision in the Conversant litigation ( UKSC 37) – Brexit removing anchor defendants and the PRC People’s Supreme Court confirming it could set global FRAND terms – it remains to be seen whether the Supreme Court will consider these important issues afresh. In the meantime, the English Patents Court can expect to be busy with telecoms patents trials.
Key takeaways from Philips v Oppo
Meade J reviewed the law on quia timet injunctions, anti-suit and anti-anti-suit injunctions. He concluded that:
Key takeaways from Nokia v Oneplus
In relation to jurisdiction, Arnold LJ’s judgment has the effect that there appear to be no circumstances in which the English court will not take jurisdiction over a FRAND/SEP dispute no matter how little connection there is to England provided there is a UK patent on which a claim can be brought.
The problem of parallel litigation might have been solved by a case management stay as suggested by the Supreme Court in Conversant. Arnold LJ declined to reverse HHJ Hacon’s refusal to grant a stay and concluded that no such stay would be appropriate.
In Philips v Oppo, Twenty Essex’s Lawrence Akka QC and Josephine Davies represented the Defendants. In Nokia v Oneplus, Twenty Essex’s Alexander Layton QC and Josephine Davies represented the Defendants, together with Daniel Alexander QC of 8 New Square.
They were instructed in both cases by Hogan Lovells International LLP.