Interdigital Technology Corporation & Ors v Lenovo Group Limited & Ors

Retrospective permission to use documents disclosed in earlier proceedings is exceptional. The applicant bears the burden of showing special circumstances and a cogent reason for collateral use. The court must protect the policy underlying mandatory disclosure and treat breaches of confidentiality seriously.

Relevant considerations include prejudice, whether the breach was inadvertent, whether permission would have been granted if sought promptly, and the proportionality of denying use altogether. Closely related proceedings, the likely future disclosure of the same material, and the absence of substantive prejudice may justify permission. Permission may be limited and accompanied by indemnity costs to mark serious breaches.

Lenovo and InterDigital were parties to earlier FRAND proceedings concerning a licence for InterDigital’s standard essential patent portfolio up to 31 December 2023. In later proceedings between the same parties, Lenovo sought a licence covering the portfolio going forward, including non-essential patents.

Lenovo had used limited information from confidential licences disclosed in the earlier proceedings when formulating its later claim. It accepted that this breached CPR 31.22 and the confidentiality protocol, and applied retrospectively for permission to use the information in the later proceedings. The issue was whether permission should be granted despite the breaches, and if so on what terms.

1. The application was granted in part on conditions. Lenovo received retrospective permission to use the limited information only in formulating and pleading the specified claim concerning the extended licence, and to make arguments based on that pleading in the forthcoming jurisdiction challenge.

2. The court applied the agreed principles under CPR 31.22. Lenovo bore the burden of establishing special circumstances amounting to a cogent reason for collateral use. The rationale of the rule was important: mandatory disclosure invades privacy, and restrictions on use encourage compliance.

3. Retrospective permission required an especially strong case. The court considered the factors identified in Schlaimoun v Mining Technologies International LLC, namely whether a litigant was prejudiced, whether the breach was inadvertent, whether a timely application would have succeeded, and the proportionality of debarring use altogether.

4. There had been multiple and serious breaches, including delay in seeking permission and failure promptly to notify affected third parties. Those matters required a costs sanction. Nevertheless, the breaches were inadvertent rather than deliberate attempts to evade the confidentiality regime; no substantive prejudice to InterDigital or third-party licensors had been shown; no particular benefit had been obtained from the breaches; and the second proceedings were closely related to the first.

5. The likelihood that the relevant documents would inevitably be disclosed in the second proceedings was relevant, though not determinative. Refusing permission would risk delay, additional costs and determination of the jurisdiction issue on an uninformed or potentially false premise. The existing confidentiality protection for third parties would remain unaffected by the permitted use.

6. Lenovo was ordered to bear its own costs and InterDigital’s costs of the application on the indemnity basis. An interim payment on account of costs of £80,000 was ordered.