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

The full judgment necessarily grappled with the various licences and, as I say, it included information derived from them. The judge’s approach involved rejecting both sides’ accountancy evidence and applying his own methodology to grapple with the material. That was the subject of the main appeal but subject to one point about unpacking, those issues do not matter in this appeal.

The full judgment contains a number of tables in which the terms of the various licences are addressed and summarised. Starting at [230] the judgment refers to a summary of the terms of each of the 28 licences in issue which forms a table at Annex 3 to the full judgment. The four columns include information such as the date of the licence and a description of its main provisions, including the financial terms. Where the licences are or involve lump sums, these figures are set out. Some percentage rates are included but many are not. The Annex 3 table also includes an entry for my judgment in Unwired Planet [2017] EWHC 2988 (Pat) because that was being relied on as part of Optis’s case.

Pausing here, in the public version of the judgment published in June 2023 everything in Annex 3 was redacted save the column headings and the reference to Unwired Planet. It is now common ground that almost all of Annex 3 does not need to be redacted. In the less-redacted form of the judgment, for the reasons given in the February 2024 judgment, the only aspects of Annex 3 which would remain redacted are the various lump sum figures. There is no appeal against that conclusion. The appeal relates to some text in Annex 3 which describes an aspect of the terms of the licences, and two figures relating to the Qualcomm licence, a per unit percentage and a DPU.

Returning to the full judgment, the next important aspect is at [465] which introduces Table 9. In this table the judgment lists all 28 of the licences and provides three columns of numbers. One gives the percentage share of the patent stack held by the relevant licensor. The other two columns set out percentage royalty figures. For certain Optis licences which were set at Optis’s announced licensing rates, the information is not confidential (the Doro 2018, Blu 2018, Gigaset 2021, Cyrus 2021, Doro 2021, and Blu 2021 licences). For all the other licences, which were or included lump sum arrangements, the figures in the table are those produced by the expert Mr Bezant by the process of unpacking. In two further cases, which do not now matter, no percentages were given in Table 9.

In the public June 2024 version of the full judgment, as with Annex 3, the headings of Table 9 are included but every row is redacted. It is now common ground that for each row in Table 9 the stack share does not need to be redacted (nor the party names and date). In the less-redacted form of the judgment, the two percentage rates would be revealed for each licence. Maintaining the redactions (save for the ones with the Optis announced licensing rates) is one of the purposes of the appeals.

Next, at [466] of the full judgment, in Table 10 the judge reworked Table 9 with a view to showing what each of the percentage rates implied if those rates were pro-rated to the same stack share. In terms of redactions, subject to what follows, Table 10 is the same as Table 9. So in the public June 2023 version, every row was redacted, and the appeal relates to the two percentage rates for each licence. The less redacted form of the judgment would make them public and the appellants maintain they ought not be.

However Table 10 differs from Table 9 in that it has additional rows in which the data in the table are aggregated in various ways. These include total rates overall and totals broken down for Apple licences and Optis licences; as well as average rates, again averages for all and averages broken down for Apple and for Optis licences. One of the problems which only emerged with clarity on this appeal was as follows. Each appellant (or at least most of them) had only sought to appeal the decision not to redact specific information about the licence to which it was a party. However even if a given appellant’s case was accepted in relation to the figures in the body of the table, what emerged was that this case would in all probability be undermined by a combination of the absence of appeals by some non-parties and what would happen on publication of the averages and totals. This is why the applications were made by the appellants to amend the grounds of appeal to cover this issue and by Apple to serve an appellant’s notice out of time. Although I must say it seemed to me at the hearing that this was a problem which must have been obvious for a long time, the submissions satisfied me that the complexity of the issues and the manner in which confidentiality was dealt with between June 2023 and the order of 17 June 2024, and the course of this appeal, led to a state of affairs in which the issue only emerged at the hearing. As a result it was in the interests of justice to give permission to take the steps identified. The totals and averages are within the scope of the amended grounds of appeal and the further appellant’s notice.

Returning to the full judgment, having examined the percentage rates the judge decided not to use them to reach a conclusion but rather to use an approach based on lump sums. This led to Table 11 at [482]. This table addresses the Google licence with Optis and all 19 Apple licences. All 20 licences are based on lump sums. As I explained in a bit more detail in the main appeal judgment at [62] to [66], essentially for each licence Table 11 sets out the actual lump sum and the term of the licence. From this an annualised annual payment is calculated and then, using the stack shares (and catering for cross-licensing if relevant), an implied annual value for the whole stack is calculated expressed as a lump sum. In the less-redacted judgment the actual lump sum and the various calculated lump sum figures would remain redacted while the stack shares and the term of each licence would be revealed. Nothing in Table 11 is in issue on this appeal.

Table 12 reworks the results in Table 11 and adds nothing on this appeal. The next important aspect is Table 13, introduced at [483](ii). The first relevant column of Table 13 shows the implied lump sums of Table 11 and then the further columns show further lump sum figures produced as a result of various adjustments. As for Table 11, the less-redacted judgment would maintain the confidentiality of all the lump sum figures in the body of Table 13. However Table 13 also contains two final rows of averages and totals which would be published in the less-redacted judgment and which are now subject to the amended scope of these appeals and the further appellant’s notice.

This summary explains the main aspects of the full judgment from the point of view of this appeal. The full judgment also includes various individual figures which are subject to the appeal. They either come directly from the tables or are derived from those figures and so they stand or fall with the corresponding data in the tables. For example the figures in [467] to [470] and [485] are based on average figures in Table 10. Also [470](iii)(b) includes a figure based on Table 10.

After the public June 2023 judgment was published the third parties received partially redacted copies of the full judgment in order to allow them to make representations about confidentiality. They attended and were represented at a hearing in July 2023. At that stage the judge rightly made the point that any further version of the judgment would not be handed down without them being heard. However as things developed the third parties were not given that opportunity at the hearings in December 2023 and February 2024 which led up to the February 2024 judgment. They ought to have been given that opportunity and that was part of what precipitated the late amendments to the grounds and the further appellant’s notice.