Case Nos: CA-2024-000489, CA-2024-000498, - [2025] EWCA Civ 1263

Standing back from the detail I have just described, an important aspect of the February 2024 decision was the distinction between the treatment of two different kinds of financial information: lump sums and unpacked per unit rates. Confidentiality in the third parties’ lump sum data in the full judgment was maintained while publication of the unpacked percentage and DPU data (both of which are kinds of per unit rate) was to take place. The distinction applied whether those lump sums were the actual figures read off the documents or were derived lump sum data produced in the proceedings. The soundness of this approach is the main practical issue on this appeal and it is convenient to deal with it now.

In my judgment that distinction is flawed for a number of reasons. Part of this debate turns on the risk that the unpacked per unit rates could be reverse engineered to derive the lump sums. The judge did not accept that repacking to achieve an accurate view of the lump sums was a true practical likelihood. Key to this conclusion was the judge’s view that unpacking was “a subjective and unreliable process” (see the February 2024 decision at [53] as a whole; the quotation is from [53](ii)(a)). That passage in the February 2024 decision refers back to [301] of the main judgment which expresses this conclusion. In the main judgment this was a fundamental point. It had been common ground between the two accountancy experts that the way to evaluate the various licences was to adopt some kind of unpacking and evaluate the licences in per unit terms (main appeal [115]). The judge’s view in [301] of the main judgment was the basis for the rejection of all this accountancy evidence, which was in turn the evidence which had produced the unpacked per unit rates now under consideration. It was also the reason why in the main judgment the judge’s own method to arrive at a FRAND rate did not use unpacked per unit data. However Optis’s appeal against the rejection of the expert’s unpacking was upheld in the main appeal ([40]-[41] and [86]-[96]). The unpacking exercise produced useful data and indeed the FRAND rate reached in the Court of Appeal’s judgment was based on the unpacked per unit data ([129]-[146]).

There is a point on the accuracy of repacking or, as the judge put it, the risk of being wrong. There are three different reasons why it does not matter whether another company looking at the unpacked per unit rates would be able to back calculate the lump sum for a given licence with pinpoint accuracy or certainty that this was the “right” answer. First a rough estimate of the lump sum is all that is needed and would do just as much harm to the negotiating position of the third party whose licence the figure derives from. The fact that the person doing the unpacking cannot check the result does not matter. The second is that in fact, as the judge acknowledged at [53](d), there is information available (albeit for a price) which would be useful in that exercise. It was used in the worked example given to the judge. The third is that, as Nokia point out on this appeal, even inaccurate data puts them in difficulty because the only way to rebut a contention by someone who has carried out the repacking is to reveal the relevant confidential information.

A different point, emphasised by the third parties on this appeal, is that the unpacked rates themselves will be relied on by other would be licensees negotiating with the third parties for a licence even if they could not reliably be reverse engineered to the lump sums. These figures are derived from the true rates and do themselves represent the view of the professional experts called at trial as to the value of these licences. That data has just the same kind of value as the lump sum figures themselves would have, if they were published. In other words the status of the unpacked rates ought not to have depended solely on reverse engineering.

Finally there is a distinct point about two further per unit rates which appear in Annex 3 relating to Qualcomm and were not the result of unpacking. They are not mentioned specifically in the February 2024 judgment and appear to have been treated in the same way as the unpacked per unit rates, whereas these are rates from the licence itself. There is no rational distinction between the status of those rates and the lump sum in that licence.

Therefore in my judgment there is no sound basis for drawing a distinction between the lump sum figures and the per unit figures here. Either they ought both to be redacted or neither should be, whereas the judge’s approach rejected redaction of both sets of data on the old test and only allowed redaction of the lump sums but not the per unit rates, on the new test.

Looking ahead, in summary I have reached the conclusion that there is no new test and that the right approach is in effect the old test, but that when that test is applied to these figures, then they all ought to be redacted, essentially for the same reasons that the same kind of information was redacted in Unwired Planet and InterDigital v Lenovo. However to explain my reasons for this will require some detail to be gone through, and that is the next task.