The @BristowsLawFirm FRAND Tracker (check it out here) has been updated to include the recent Sisvel judgment in its case against OnePlus and Xiaomi. The Sisvel case has been characterised by numerous judgments on issues pertaining to the management of a FRAND action, so it is perhaps unsurprising that this judgment follows that theme. The issue on this occasion was the defendants’ indication that they intended to run (or at least reserved their right to run) a case concerning the proportion of truly essential patents in the pool. The Claimants sought further particulars of that case.
Whilst the court acknowledged the boundary between (i) what must be pleaded and (ii) what constitutes evidence was particularly blurred in FRAND cases, it was concerned that the parties' pleadings should be sufficiently detailed so as to ensure that the evidence filed addressed the relevant issues. Accordingly, the court made it clear that at least the methodology proposed to be employed in any essentiality review must be pleaded out as soon as possible. That would enable the evidence required to prove the results of such a review to be identified, as well as suitable case management directions to be given in good time.
This decision (as with prior decisions in the case) is of particular interest as it evidences a general trend towards the 'front-loading' of FRAND cases. The court appears to be concerned to ensure that parties are clear on their cases in FRAND actions, and that those cases are pleaded properly. That said, it must be balanced in most cases with the requirement for a certain level of disclosure from the licensor for a licensee to formulate properly its case (an issue addressed in a previous Sisvel decision.)
I consider it is important, so far as is possible, to ensure that the expert evidence which is served is not like ‘ships passing in the night’ and the respective experts are addressing the same issues, using the same materials.