Unwired Planet v Huawei, Samsung & Google

The High Court has given guidance on the scope of the new powers to transfer proceedings to the Competition Appeal Tribunal.  In the Unwired Planet litigation, the claimant has asserted a total of five alleged “standard essential” telecommunications patents, and one non-SEP, against Huawei, Samsung and Google.  Google has settled in respect of the SEPs.  A total of five technical patent trials have been listed.  So far, three such trials have taken place, with Unwired Planet succeeding on two SEPs but failing on a further two alleged SEPs.  In October 2016, a 13-week non-technical trial is due to commence in the High Court to hear all of the competition law and other FRAND issues arising in the case, including a distinct case that the arrangements by which Unwired Planet acquired its SEPs from Ericsson contravened Article 101 TFEU.  In a judgment delivered on 29 April 2016, Birss J declined an application by Samsung to transfer the non-technical trial to the CAT.  His principal reason for coming to that decision was that there was a distinct contractual FRAND case which could not, as a matter of jurisdiction, be transferred to the CAT even under the recently-commenced power in section 16(1) of the Enterprise Act 2002 and the Section 16 Enterprise Act 2002 Regulations 2015.  His reasons for coming to that conclusion are potentially significant for competition law practitioners.  In short, the High Court held as follows:

(i)            The transfer power encompassed issues which were “consequential or ancillary” to causes of action under Articles 101 or 102 (para 41), and thus would extend to permitting the transfer of any issue which would “need to be addressed in order to decide” such causes of action (para 44).

(ii)           The transfer power did not however encompass “a distinct cause of action which is not itself an infringement issue”, even if the two causes of action “interrelate with each other because they arise in the same context and raise closely related factual, legal and policy questions” (para 44).

This interpretation of the transfer power may create significant hurdles in cases where claimants rely on common law torts parallel to, or overlapping with, competition law infringements.  A further issue of interest is the High Court’s comments on the nature of the CAT’s jurisdiction in a transferred case:

• It was pointed out by Huawei that neither the transfer powers nor the EA 2002 create any appeal route from a decision of the CAT in a transferred case.  Since both the CAT and the Court of Appeal are creatures of statute, this meant that technically there would appear to be no such appeal.
• Both Samsung and Ericsson responded by pointing out that the transfer power under section 16(1) EA 2002 is framed in a manner similar to the power to refer cases to the CJEU: the transferred issues are sent to the CAT, but they come back to the High Court for an order to give effect to the CAT’s decision on the transferred issues.  The High Court appeared to accept this (para 18).

The full judgment can be read in the attached pdf.

James Segan represented Huawei.