Posted: June 26th, 2019
TQ Delta, LLC v Zyxel Communications UK Ltd & others  EWHC 353 (Pat)
This is a judgment in a preliminary dispute concerned the setting of a trial date for the determination of RAND licence terms in a case where the technical trial of the two telecommunications patents had already been heard by the court, but no judgment on the technical merits had yet been handed down.
Faced with “voluminous and heated” inter-solicitor correspondence and witness statements outlining numerous procedural disputes, Carr J made it clear that if the parties continued to fail to cooperate in a sensible manner then he would be minded to “take a tough line” in relation to costs.
The parties’ conduct aside and, considering the parties’ time estimates and submissions with regard to the need for expert evidence, Carr J decided that the RAND trial should take place in September 2019 and not in April 2020 as suggested by the Defendants.
In reaching his decision he referred to the procedures of the Copyright Tribunal and stated that the principles applicable to deciding FRAND/RAND cases had been very clearly set out by the Court of Appeal, in particular in Lord Kitchin’s judgment in Unwired Planet v Huawei.
The result was that such a hearing ought to be relatively straightforward and relatively simple. Further, he considered scheduling hearing dates around Counsel availability to be a fundamentally wrong approach. He likened it to having “all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity”. There was an abundance of talented barristers who would be capable of presenting the parties’ case at a RAND trial.
A copy of the decision can be found here.
Headnote: Marcus Riby-Smith, Marks & Clerk Law LLP