Isabel Jamal and Jennifer Dixon acted for Optis and Unwired Planet in the hearing of this application by Apple. The dispute between the parties encompasses multiple trials concerning standards essential patents and FRAND licence terms. Apple applied to vary a case management order, made in July 2020, which scheduled a sixth trial in the dispute (‘Trial F’) for July 2021. Trial F is to determine whether Apple is a ‘willing licensee’ for the purposes of Optis’ FRAND undertaking to ETSI, the terms of which are to be settled at ‘Trial E’ in June 2022.
Apple sought to re-schedule Trial F to be heard at the same time as Trial E instead of before it. Apple had agreed a conditional undertaking to take a FRAND licence from the court, and argued that this was a material change of circumstances which meant there was now no good reason for Trial F and Trial E to be heard separately.
Rejecting the application, Mr Justice Birss held that the undertaking did not change the character of the unwilling licensee issue from one which is logically prior to the FRAND issues, and that both Optis and Apple have properly arguable cases on the question of whether Apple is an unwilling licensee which are unchanged by the undertaking. The scheduling of the trials brought no serious prejudice to Apple and a significant case management benefit in that an early result on Trial F, whichever party wins, would have enormous significance for the parties and increase the chances of settlement.