Optis v Apple [2021] EWHC 2759 (Pat)

11 October 2021

Isabel Jamal and Jennifer Dixon appeared for the Claimants (“Optis”) in the consequentials hearing following the judgment of Meade J in Trial F in these proceedings.

At Trial F, the judge held that the Defendants (“Apple”) needed to give an undertaking to take the FRAND licence set by the Court at a future trial (“Trial E”) or if it wished to rely on the ETSI undertaking to avoid being injuncted.  Given the novelty of the issues raised in the trial, the judge granted Apple a short time to consider whether it wanted to make a binding commitment to the FRAND terms to be found in Trial E, or offer some other undertaking.  Apple offered a draft undertaking in advance of the consequentials hearing, but Optis argued that it was insufficient on the basis that it contained various caveats and limiations.

At the consequentials hearing, Meade J held that the appropriate undertaking should not contain an upper bound defined by reference to Optis’ existing offer, and also held that, although Apple may need to be released from the undertaking following the outcomes of the Trial F appeal and/or the further technical appeals and trials, the way to address that was for Apple to have permission to apply to be released, rather than defining now in what scenarios Apple should be released from the undertaking. Therefore the Judge ordered that, if Apple wished to avoid an injunction it must undertake to enter into a licence in the form that is determined to be FRAND at Trial E in these proceedings or, to the extent that there are any appeals of the judgment in Trial E, a licence that is finally determined to be FRAND on appeal.

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