Confidentiality - InterDigital Technology Corporation and others v Lenovo Group Ltd. and others
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I discussed Mr Justice Mellor's judgment in Interdigital Technology Corp and others v Lenovo Group Ltd and others [2023] EWHC 539 (Pat) in Patents - Interdigital Technology Corporation and others v Lenovo Group Ltd. and others on 21 March 2023. That had been a trial to determine the payments and other terms upon which patents that were essential for compliance with technical standards could be used. At the end of my case note, I wrote:
"This has been an extraordinarily difficult case note to write partly because the judgment is 225 pages long and partly because large chunks of it have been redacted, The judge has promised to publish a fuller version of his judgment in due course but even that will be incomplete. Many of the findings are difficult to follow without knowing the contents of the experts' reports and a transcript of the evidence of the trial."In Interdigital Technology Corp and others v Lenovo Group Ltd and others [2023] EWHC 1577 (Pat) Mr Justice Mellor heard submissions on whether he should remove some or all of the redactions in the version of his judgment that he had released to the public on 16 March 2023. The hearing took place on 5 April 2023 and his lordship handed down his decision on 28 June 2023.
i) First, InterDigital together with Samsung, Apple, Xiaomi, Huawei, ZTE, Acer, Wistron, NEC, Innovius, AB and PA Consulting called for the existing redactions to be maintained'
ii) Two InterDigitl licensees took a different position:
(a) Doro had no objection to the removal of 3 redactions concerning their licence agreement or details derived from it and was in favour of greater transparency;
(b) Fairphone did not object to the removal of the redactions concerning their agreement or details derived from it but did not accept that the numbers used by the parties and experts were correct;(a) Doro had no objection to the removal of 3 redactions concerning their licence agreement or details derived from it and was in favour of greater transparency;
iii) Lenovo submitted that the principles of open justice required the Court to remove a number of redactions; and
iv) Many of the licensees chose not to make any representations or simply did not respond to the invitation to make submissions to the court.
It was common ground that Mr Justice Birss had set out the applicable principles in paras [23] and [24] of his judgment in Unwired Planet International Ltd v Huawei Technologies Co. Ltd and another [2018] Bus LR 896, [2018] RPC 8, [2017] WLR(D) 802, [2017] EWHC 3083 (Pat):
"[23] Unless the public can see and understand a judge's reasons they cannot hold the courts to account. There is therefore a strong principle that all parts of a judgment should normally be publicly available. Nevertheless there are occasions on which judgments may be redacted. Redactions will require powerful reasons, supported by cogent evidence which addresses the details. Generalities will not do. Although redactions will be rare indeed when looking across the legal system in general, certain kinds of proceedings may regularly involve redactions due to the nature of the proceedings and the material involved. In any event however redactions must be kept to the bare minimum.
[24]. Factors which will be relevant include:
i) the nature of the information itself: for example cases in which some redaction may more readily be accepted could include technical trade secrets and private information about family life.
ii) the effect of the publication of the information. This will be a critical factor. If publication would be truly against the public interest then no doubt the information should be redacted. If publication would destroy the subject matter of the proceedings - such as a technical trade secret - then redaction may be justified. The effect on competition and competitiveness could be a factor but will need to be examined critically.
iii) the nature of the proceedings: for example privacy injunctions and competition law claims may require some redaction while an intellectual property damages claim may not. The point is not that different kinds of case demand a different approach, it is that the balance of factors will change in different cases (e.g. the need to encourage leniency applications in competition law).
iv) the relationship between the information in issue and the judgment (as well as the proceedings as a whole). Obviously judges do not deliberately insert irrelevant information into judgments but not every word of a judgment is as important as every other word. It may be that some sensitive information can be redacted without seriously undermining the public's understanding of the reasons.
v) the relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment). For example, a patentee seeking damages for patent infringement on a lost profit basis knows that they will have to disclose their profit margin in the proceedings and that those proceedings are public. A third party whose only relationship with the case is that they are a party to a contract disclosed by one of the parties to the litigation is in a different position."
"[23] Unless the public can see and understand a judge's reasons they cannot hold the courts to account. There is therefore a strong principle that all parts of a judgment should normally be publicly available. Nevertheless there are occasions on which judgments may be redacted. Redactions will require powerful reasons, supported by cogent evidence which addresses the details. Generalities will not do. Although redactions will be rare indeed when looking across the legal system in general, certain kinds of proceedings may regularly involve redactions due to the nature of the proceedings and the material involved. In any event however redactions must be kept to the bare minimum.
[24]. Factors which will be relevant include:
i) the nature of the information itself: for example cases in which some redaction may more readily be accepted could include technical trade secrets and private information about family life.
ii) the effect of the publication of the information. This will be a critical factor. If publication would be truly against the public interest then no doubt the information should be redacted. If publication would destroy the subject matter of the proceedings - such as a technical trade secret - then redaction may be justified. The effect on competition and competitiveness could be a factor but will need to be examined critically.
iii) the nature of the proceedings: for example privacy injunctions and competition law claims may require some redaction while an intellectual property damages claim may not. The point is not that different kinds of case demand a different approach, it is that the balance of factors will change in different cases (e.g. the need to encourage leniency applications in competition law).
iv) the relationship between the information in issue and the judgment (as well as the proceedings as a whole). Obviously judges do not deliberately insert irrelevant information into judgments but not every word of a judgment is as important as every other word. It may be that some sensitive information can be redacted without seriously undermining the public's understanding of the reasons.
v) the relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment). For example, a patentee seeking damages for patent infringement on a lost profit basis knows that they will have to disclose their profit margin in the proceedings and that those proceedings are public. A third party whose only relationship with the case is that they are a party to a contract disclosed by one of the parties to the litigation is in a different position."
The judge addressed some of the specific redactions in his judgment. The one that was the subject of the most attention was the chart in para [586]. He decided that he could not remove the redaction but he added the following text:
"This diagram was aptly characterised as the ‘fjord’ diagram. To explain: each license was represented by a bar, whose height was the unpacked per unit rate and width represented the volume of units under the license. The Lenovo 7 (all lump sum licenses) were depicted in various shades of blue, and the InterDigital 20 (all running royalty licences) were depicted in red. In the fjord analogy, the Lenovo 7 represented a depiction of the (more or less slightly undulating) sea and the InterDigital 20 represented a depiction of the side of a very steep fjord, the cliff going up in steps. These steps were very narrow because the volumes in the RR licenses were small. X1 remains a powerful illustration of the difference between the rates unpacked from the large lump sum licensees and the generally considerably higher rates paid by the much smaller licensees under their running royalty licences."
"This diagram was aptly characterised as the ‘fjord’ diagram. To explain: each license was represented by a bar, whose height was the unpacked per unit rate and width represented the volume of units under the license. The Lenovo 7 (all lump sum licenses) were depicted in various shades of blue, and the InterDigital 20 (all running royalty licences) were depicted in red. In the fjord analogy, the Lenovo 7 represented a depiction of the (more or less slightly undulating) sea and the InterDigital 20 represented a depiction of the side of a very steep fjord, the cliff going up in steps. These steps were very narrow because the volumes in the RR licenses were small. X1 remains a powerful illustration of the difference between the rates unpacked from the large lump sum licensees and the generally considerably higher rates paid by the much smaller licensees under their running royalty licences."
He also kept the redactions at paras [382], [319], [372], [575], [577], [832]. [833], [844]. He removed tghe redactions in [129] but retained those in [148] and between [334] and [342]. He kept those in [787]. A copy of the judgment with the adjusted redactions was handed down on 4 July 2023 (see InterDigital Technology Corporation and others v Lenovo Group Ltd and others [2023] EWHC 1583 (Pat) (4 July 2023)
Anyone wishing to discuss this case note may call me on 020 7404 5252 during office hours or send me a message through my contact form.
Anyone wishing to discuss this case note may call me on 020 7404 5252 during office hours or send me a message through my contact form.
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