Interdigital v OnePlus [2023] EWCA Civ 166

17 February 2023

Michael Conway represented the Appellant “OnePlus” in an appeal relating to the terms of a confidentiality regime governing the disclosure of certain licences by the Respondent “InterDigital” in the context of a FRAND dispute. It was common ground that the regime should include an undertaking to be provided by OnePlus employees, limiting their participation in future SEP licensing discussions for two years from the conclusion of the proceedings; but a  dispute had arisen as to the scope of that undertaking. At the CMC before Mellor J, OnePlus had contended that the undertaking should be limited to discussions with counterparties to the InterDigital licence, whereas InterDigital wanted the undertaking to apply to any SEP licencing discussions.

Birss LJ, giving the judgment of the Court of Appeal, held that it had been open to Mellor J to settle a wider form of undertaking at that stage of the proceedings. Birss LJ stated that, in general, it is more straightforward to relax confidentiality restrictions over the course of proceedings than to impose tighter restrictions starting from a more liberal regime. The limited evidence that had been available to the judge relating to the impact on OnePlus of a wider form of undertaking was also a relevant factor.

View judgment