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patent litigation - approach summary judgment / strike out with caution

15 May 2015

Swift resolution of patent disputes is key to minimising significant unnecessary costs and uncertainty. However, it is rare that patent infringement proceedings are suitable for summary judgment or strike out.

So it was proved in a recent case before the English High Court. Unwired Planet sued a number of telecommunications equipment providers, including Huawei and Samsung, for patent infringement based partly on some of its claimed standard essential patents. Typically, there had been various licence negotiations between the parties. These negotiations formed part of the dispute, to the extent that the parties were unable to agree whether the licence terms offered by Unwired Planet are FRAND (fair, reasonable and non-discriminatory) as required by the standard setting body (ETSI).

Huawei sought summary judgment (alternatively strike out) on the question of whether Unwired Planet’s licence proposals were FRAND. Refusing to deal with this issue on a summary basis, or to strike out Unwired Planet’s application for a declaration that its offers were FRAND, the court found that this was a matter suitable for trial – it required an understanding of the complex factual matrix and also a consideration of the parallel role played by competition law.

The trial of this ‘non-technical’ part of the claim is not due to take place until October 2016. This, only after five technical trials (one for each patent) have taken place, commencing in October 2015.

Though it is a welcomed step that these proceedings have been docketed to a single judge, one wonders whether a prioritisation of the non-technical trial might have assisted the parties in settling the dispute at the earliest possible stage.

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