Anonymized Summary of Judgment on Confidentiality in a FRAND Case

Factual and Procedural Background

This appeal concerns the scope of redactions of non‑party confidential information in a judgment determining the terms of a FRAND licence for patents said to be standard‑essential. The underlying first instance judgment was handed down by Judge Smith on 10 May 2023 and resolved a dispute between Company A (licensor) and Company B (licensee). That first instance decision was appealed to a multi‑judge court (including Judge Newey, Judge Arnold and Judge Birss) and the substantive appeal was decided in a public judgment in May 2025.

In the underlying proceedings a large number of licences between the parties and various non‑parties ("third parties") were disclosed. Many of these licences contained confidentiality clauses and were treated under a confidentiality regime. A fully detailed "full judgment" was produced and circulated in draft under embargo; a public version with extensive redactions was produced in June 2023. Third parties objected to some redaction decisions and a subsequent interlocutory judgment in February 2024 ordered publication of a "less‑redacted" version (with some categories of information still redacted). That less‑redacted judgment was stayed pending appeal. Permission to appeal the confidentiality aspects was granted and the present confidentiality appeal was heard in July 2025.

During the hearing the court permitted amendments to some third‑party appellants' grounds of appeal and allowed an appellant's notice from Company B filed out of time in order to address issues concerning information about other non‑appealing third parties. The appeal raises interrelated issues about which categories of licence information should remain redacted in the published judgment.

Legal Issues Presented

1. What legal test governs the redaction of confidential third‑party licence information from a judgment in a FRAND/SEP dispute: (a) the established balancing approach applied in prior FRAND confidentiality decisions ("old test"), or (b) an approach derived from the Trade Secrets Directive and implementing regulations as interpreted in the Court of Appeal case commonly associated with the "trade secrets" analysis ("new test")?
2. Whether specific categories of financial information disclosed in the full judgment should be redacted, in particular:
   1. lump sum licence amounts;
   2. unpacked or derived per‑unit rates (percentage rates and DPU values) obtained by accountancy "unpacking";
   3. totals and averages computed from licence data;
   4. other contractual terms such as dates and terms of licences;
3. Whether publication of derived per‑unit rates (and/or totals and averages) would undermine the confidentiality of lump sum figures by enabling "re‑packing" or close approximation of the redacted figures.
4. Whether certain identified factual errors in the Annex to the full judgment should be corrected under the slip rule and, if corrected, whether the corrected material should itself be redacted.
5. Ancillary procedural issues including (a) the standing of non‑parties (third parties) to appeal, and (b) the consequences of correcting redactions for the public understanding of the judgment.

Arguments of the Parties

Note: parties are anonymized as "Company ..." consistent with the source text. Only parties for whom argument summaries appear in the opinion are included below.

Company C's (InterDigital) Arguments

• Contended that the correct legal approach is the established balancing approach (the "old test") and that the judge should have applied that approach; if applied, the redactions sought by Company C would have been granted.
• Alternatively, if the Court of Appeal's decision in the trade secrets case had to be applied, the judge misapplied that decision and proper application would still require the redactions Company C sought.
• Challenged the judge's conclusion that unpacked per‑unit rates need not be redacted on the basis that the decision turned improperly on the supposed difficulty of reverse engineering ("re‑packing").
• By amendment, sought redaction of all unpacked rates in Tables 9 and 10 (save certain specified licences) and redaction of totals and averages in Table 10, arguing publication of those figures would undermine confidentiality of Company C's unpacked rates.
• Raised separate grounds concerning the slip rule correction points (confidential in part) which were dealt with alongside the other grounds.

Company D's (Qualcomm) Arguments

• Advanced grounds broadly paralleling Company C's first two grounds: (1) the old test remained the correct approach; (2) the judge erred in applying the trade‑secrets approach and there is no valid distinction between lump sums and per‑unit rates for redaction purposes.
• Also explicitly supported certain grounds raised by Company B in its appellant's notice concerning the impact of averages/totals and other table data.

Company F's (Nokia) Arguments

• Raised grounds substantially the same as Company C's first two grounds.
• Argued (similar to Company C) that the issue should not turn on the ease of reverse engineering and that published unpacked rates will be treated by others as reliable benchmarks which Company F could not rebut without revealing confidential information.

Companies E, H and G (combined appellants for this appeal)

• Advanced multiple grounds (as set out in their appellant's notice) focusing on the same core issues as Company C and Company F: challenging the judge's treatment of unpacked rates, the risk of re‑packing, and the effect of aggregate data (averages/totals) combined with partial publication.
• Made additional points about the possible inferential effects of table ordering and other incidental data.

Company B's (Apple) Submissions

• Filed an appellant's notice late (accepted by the court) addressing how publication of certain information about Apple counterparties to licences (who had not appealed) would be affected by publication of other data in the tables, including totals and averages; supported enhanced redactions on that basis.
• Joined with Company A on a joint note filed shortly before the hearing that raised the impact of averages/totals and other table data on third‑party confidentiality interests.

Fallback note: The opinion states that certain submissions were made by counsel and third parties; if any party's specific argument was not detailed in the opinion it is not summarized here.

Table of Precedents Cited

Precedent (anonymized)	Rule or Principle Cited For	Application by the Court in this Opinion
Case X v Company H [2020] UKSC 37 (FRAND jurisdiction authority)	Established that courts have jurisdiction to settle FRAND licence terms in SEP disputes.	The opinion treats this as the established foundation for the court's jurisdiction to set FRAND rates in the underlying litigation; it is cited as background authority for the substantive context of the dispute.
Case X [2017] EWHC 3083 (confidentiality decision in FRAND context)	Applied a balancing approach to determine what licence information in a FRAND judgment should be redacted, emphasizing that redactions must be powerful, specifically evidenced and kept to the minimum necessary.	The court describes this earlier judgment as articulating the "old test" and relies on its principles (balance of factors, specificity of evidence, minimum redactions) as the correct approach to confidentiality in FRAND judgments.
Company C v Company I [2024] EWCA Civ 743 and Company C [2023] EWHC 1577 (Pat)	Followed the Unwired Planet confidentiality approach; the High Court decision (2023) applied the balancing test to redact rates (including unpacked rates) while preserving core reasoning.	The opinion treats these decisions as supporting the "old test" and as consistent authorities showing how to balance open justice and confidentiality in FRAND cases; they are relied on to show established practice of redacting sensitive licence financials.
Case Y v Company J [2023] EWCA Civ 840 (trade secrets case)	Interpreted the Trade Secrets Directive and the implementing regulations; described certain information as "technical trade secrets" and addressed protective measures including redaction and publication of non‑confidential versions of judgments.	The judge below had treated this decision as introducing a distinct "new test" requiring redaction of information qualifying as a trade secret without balancing. The present court analyses and rejects the view that this decision created a new, qualitatively different test in the FRAND confidentiality context.
R (Mohamed) v Secretary of State (No. 2) [2010] EWCA Civ 65	Affirmed a "very strong presumption" in favour of public availability of judgments but recognised that exceptional circumstances may justify redaction; described a balancing of factors.	The opinion relies on this authority to restate that open justice is the default and that redactions require "very powerful" reasons supported by cogent evidence; this underpins the court's balancing approach.
Case Scott v Scott [1913] AC 417	Classic exposition of when the interests of justice may require departure from open justice (example: protection of secret processes/trade secrets).	Used as the historical foundation for the principle that justice itself can outweigh open justice where protection of secrets is necessary; informs the court's description of the single balancing test.
Company K v Company L (Lilly ICOS v Pfizer) [2002] 1 WLR 2253	Demonstrates that confidential financial information may be protected in appropriate circumstances even where it is not a technical trade secret.	Referred to in the discussion of JC Bamford to show that non‑technical confidential information can nonetheless justify protection; supports the proposition that "trade secrets" in the Directive are not the only basis for protecting information.
Company M v The City [2008] EWCA Civ 12 (George Wimpey v Tewkesbury BC)	Confirmed that, under the Civil Procedure Rules, an appellant does not necessarily have to have been a party to the proceedings below to have standing to appeal.	Relied on to confirm third‑party appellants' standing to bring confidentiality appeals despite not being parties to the underlying trial.
In Re W (A Child) (Non Party Appeal) [2016] EWCA Civ 1140	Applied the principle that non‑parties may have appeal rights in appropriate circumstances, following George Wimpey.	Used alongside George Wimpey to support third parties' standing to appeal confidentiality decisions.
Trade Secrets Directive 2016/943/EU and Trade Secrets (Enforcement, etc) Regulations 2018 (SI 2018/597)	Provide a statutory/regulatory definition of "trade secret" (information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret) and empower courts to publish redacted versions of judgments.	The opinion analyses how these instruments were interpreted in the Court of Appeal decision and concludes that while they are relevant, they do not create a separate, automatic rule displacing the balancing approach in every case.

Court's Reasoning and Analysis

The judgment, authored by Judge Birss, proceeds in the following analytical steps:

1. Framing the legal context: the court reiterated the strong presumption in favour of open justice and explained that exceptions are permitted only where justice itself requires restriction of publicity, citing historic and modern authorities. The court emphasised that redactions must be justified by powerful reasons and cogent, specific evidence.
2. Identification of the contested categories of material: the various redactions were classified (following the interlocutory judgment) into classes including (i) slips to be corrected, (ii) lump sum licence figures, (iii) other licence terms such as dates and term, and (iv) derived data (unpacked per‑unit rates and calculated implied lump sums, plus totals and averages).
3. Precise legal issue: the judge considered whether the Court of Appeal decision on trade secrets had introduced a qualitatively different "new test" that required automatic redaction of information qualifying as a trade secret under the Trade Secrets Regulation, without any balancing exercise.
4. Analysis of precedents and statutory instruments: the court reviewed earlier FRAND confidentiality authority (the Unwired Planet confidentiality judgment and the subsequent InterDigital high court decision), the Court of Appeal trade‑secrets decision, and the Trade Secrets Directive and implementing Regulations. The court concluded that:
   • There is only one overarching question: whether open justice must yield to the interests of justice in the particular circumstances (i.e., a balancing exercise), not two distinct tests.
   • JC Bamford (the trade‑secrets case) was correctly decided on its facts where technical trade secrets were involved; however, it did not displace the established balancing approach or create a universal rule that any information falling within the statutory definition of "trade secret" must be redacted automatically without consideration of circumstances.
   • The Trade Secrets Directive/Regulations are relevant and may reinforce protection in cases of true trade secrets, but their definitions and permissive provisions do not mandate a categorical change to the prior law on redactions in judgments.
5. Application to the facts (financial data): the court examined the distinction drawn below between lump sum figures and unpacked per‑unit rates. The judge found that the distinction was not tenable for multiple reasons set out in the opinion:
   • Unpacked per‑unit rates are commercially valuable and can be relied on by third parties in negotiations, irrespective of whether perfect re‑packing to the original lump sum is possible.
   • Even an approximation obtained by re‑packing could materially harm a third party's negotiating position, and inaccurate approximations themselves impose practical difficulties because the third party would be forced to reveal confidential data in order to rebut them.
   • Some per‑unit rates appearing in the Annex were read directly from licences (not derived by unpacking) and there was no principled difference between those rates and lump sums in terms of confidentiality value.
   Consequently, the court concluded that lump sum figures and per‑unit rates should be treated alike for redaction purposes: either both should be redacted or both disclosed; applying the established balancing approach, they ought to be redacted.
6. Aggregates (totals and averages): the court reasoned that publication of totals and averages could permit third parties to infer or approximate the redacted figures for individual licences (especially if some individual entries were revealed). That inference risk would undermine the protection afforded by redaction; accordingly, aggregates should also be redacted where they would enable such inference.
7. Other licence terms and corrections: the court examined whether dates, terms and certain factual statements (including two identified errors in Annex 3 relating to sub‑licensing and cross‑licensing) should be corrected and/or redacted. The court held:
   • Corrections that are simple slips under the slip rule (CPR r40.12) should be made. The slip rule is not restricted to parties; third parties may raise slips and corrections do not require unanimous agreement if the court is satisfied the correction is appropriate.
   • The specific factual errors at issue were properly characterised as slips and should be corrected (one by deletion and one by substitution of wording used consistently elsewhere in the Annex).
   • The corrected statement concerning whether a licence permits sub‑licensing should be published (i.e., not redacted) because no specific evidence justified its redaction in the way that the pricing information was justified.
8. Remedies and directions: the court allowed the proposed amendments to grounds and appellant's notices made during the hearing as being in the interests of justice, and invited parties to agree arrangements for implementing the consequential orders. The court also noted the need to address redactions in the judgment on the main appeal and invited written proposals on that point.

Holding and Implications

Core Ruling: APPEALS ALLOWED (IN PART)

The court allowed the confidentiality appeals brought by third parties (and related notices) with the following essential effects (all statements reflect the reasoning set out in the opinion):

• Legal framework: The court rejected the notion that the Court of Appeal trade‑secrets decision created a separate, automatic "new test" displacing the prior balancing approach. Instead, the proper approach remains a fact‑sensitive balancing exercise assessing whether the interests of justice require restriction of open justice in the particular circumstances.
• Redaction outcome: When the balancing approach is applied to the licence data at issue, the court concluded that the confidential financial information at stake (both lump sums and unpacked or per‑unit rates) should be redacted because publication would materially harm third parties' competitive positions and the public can understand the court's reasoning without disclosure of those particulars.
• Aggregates: Totals, averages and other aggregated derived figures that would facilitate inference of redacted individual licence figures should also be redacted to preserve the effectiveness of the redactions for individual entries.
• Other licence terms: Certain non‑financial licence terms (dates, term) need not be redacted in general; however, each such item must be assessed on its own specific evidence. The particular corrected statements concerning sub‑licensing/cross‑licensing at issue were ordered corrected and the corrected wording was to be published (not redacted) because no specific evidence justified redaction of that corrected content.
• Slip corrections: Simple factual errors in the judgment (slips) identified after circulation may be corrected under the slip rule regardless of whether the raise is by a party or a third party, provided the correction is appropriate under the rule.
• Procedural directions: The parties were invited to agree the consequential arrangements and to make proposals on redactions in the main appeal judgment.

Broader implications (as framed by the court): the decision preserves the long‑standing principle that open justice is the default, but confirms that where confidential commercial information (including non‑technical financial information) is shown by cogent, specific evidence to be damaging if published, the interests of justice may require redaction. The Trade Secrets Directive and Regulations are an important part of the legal landscape but do not automatically alter that balancing exercise.

Disposition and Next Steps

The appeals were allowed except for the limited point that corrected factual statements in Annex 3 should not themselves be redacted. The court invited the parties to agree arrangements for implementing the consequential matters and to make proposals regarding redactions required in the judgment on the main appeal.

This summary is strictly based on the content of the provided opinion and contains no additional facts or inferences beyond those expressly set out in that opinion. Names of persons and entities have been anonymized consistently.