Unwired Planet International Ltd v Huawei Technologies Co Ltd & Ors

In case management, the court may select a fixed service date where that provides greater certainty than linking service to another procedural event. The date must allow a fair period for compliance. A case-management order may cover a patent not included in the original application where the same underlying rationale applies, including the possibility of central amendment in the European Patent Office. The court should avoid wording that either prejudges future procedural applications or imposes an unnecessarily absolute restriction. The court may extend time where compliance with the sealed order has become impracticable, while preserving permission to apply to vary or stay the order.

The judgment gave reasons for an order made after an earlier case-management hearing concerning patent litigation between the claimant and the defendants. The parties had been unable to agree the wording of the order and filed competing draft orders and written submissions.

The issues concerned the date for service of a claimant’s document, identification of the issues and disclosure, whether European patent 2 229 744 should be treated alongside two other patents for amendment applications, the effect of proposed wording concerning later amendments, the status of part of Samsung’s application, and an extension of time under CPR r3.3(4).

1. Service date. A fixed date was preferable to a date linked to service of expert reports because the document might not be served at the same time. A fair period required service by 7 May 2015 rather than 29 April 2015.
2. Identification of issues. The defendants’ wording was preferred because it made clear that the document was a statement of the claimant’s case explaining why disclosure should be given. It did not give unconstrained permission to amend the existing case.
3. Patent 2 229 744. The order concerning applications to amend was extended to that patent. Although it was not in opposition proceedings in the European Patent Office, it was a European patent subject to the same possibility of central amendment. That characteristic supplied the relevant rationale, and the distinction advanced by the claimant was unconvincing.
4. Future applications. The court refused wording stating that the order would not prevent later amendment applications. That wording would prejudge future events and undermine the case-management purpose of fixing a date. An absolute restraint on every conceivable future application would likewise be inappropriate.
5. Remaining application and extension. Samsung’s remaining application was recorded as not being pursued at that time, rather than dismissed or held over. Exercising its power under CPR r3.3(4), the court extended the time for service until 7 May 2015. The parties retained permission to apply to set aside, vary or stay the order.

The judgment followed an earlier case-management decision recorded as [2015] EWHC 1039 (Pat). The present judgment resolved the parties’ competing proposals for the form and implementation of the resulting order.