Interdigital Technology Corp v Lenovo Group Ltd

In managing highly confidential information in patent and FRAND litigation, the court must balance the receiving party’s need for the fullest possible access to relevant material against the interests of the disclosing party and third parties in preserving confidential commercial information. External-eyes-only restrictions are exceptional, particularly where they prevent a party’s officers or employees from seeing material important to the trial. There is no universal confidentiality order. The regime must be tailored to the information, its commercial sensitivity, the risk and practicality of misuse, the role of the material in the litigation, and the receiving party’s ability to contribute to the case. A confidentiality tier enabling limited representatives to inspect necessary material, combined with an appropriate licensing bar, may provide the necessary balance.

The claimants sought a global FRAND licence concerning a portfolio of mobile-technology patents. Ahead of the FRAND trial, the court considered confidentiality arrangements for patent licence agreements and analyses derived from them. A three-tier regime had previously restricted highly confidential material to lawyers and external experts, preventing Lenovo personnel from seeing unredacted comparable-licence evidence and impairing instructions on the proposed lump-sum figure.

The parties proposed a new intermediate tier for named Lenovo representatives, subject to objections by counterparties and a licensing bar. The court also had to determine the treatment of anonymised comparable-licence data and extracts from an expert report.

1. Applicable principles. The court adopted the principles summarised in Oneplus v Mitsubishi [2020] EWCA 1562, including the need to balance meaningful access against confidentiality, the exceptional nature of external-eyes-only restrictions, the absence of a universal order, and the relevance of the information’s value, risk of misuse, role in the action, party contribution, and organisational structure. The court also had regard to Al-Rawi v Security Service [2012] 1 AC 531 and the other authorities referred to in the summary.
2. Specified Persons tier. An intermediate tier was necessary to enable Lenovo to participate meaningfully in the imminent FRAND trial. Two named Lenovo representatives were permitted access. A five-year licensing bar was appropriate because of the range and commercial value of the information. A read-only or supervised-access restriction was not warranted given the representatives’ undertakings and the burden it would impose. Material not included in the trial bundles could remain subject to the existing lawyers-eyes-only designation, while included material could be placed in the new tier.
3. Anonymised data. The anonymised table of unpacked per-unit rates remained general confidential information because its publication could provide commercial advantage to Lenovo or third parties. The weighted-average rows were redesignated non-confidential because they represented analyses of the underlying material and were comparable to the expert’s weighted-average rates, which were also to be disclosed.
4. Expert conclusions and orders. Specified extracts from the expert report, including weighted-average rates and comparative conclusions, were redesignated non-confidential. They defined issues to be tried and their disclosure was unlikely to enable useful reverse engineering. The court expressed no view on the correctness of the disputed analyses. The parties were directed to agree an order, with counterparties given an opportunity to make further representations.

First-instance decision on confidentiality arrangements ahead of the FRAND trial. The judgment describes an earlier consent order made by Birss J in July 2020, but no prior appellate decision is stated.