The Bristows FRAND Tracker has now been updated to include two recent decisions in the ongoing action brought by Sisvel and Mitsubishi against various implementers including Xiaomi and Oppo.
The first decision is a reminder to parties that it is necessary to plead cases on essentiality in sufficient detail that the court can (a) case manage the action and (b) make findings of fact at trial. Of particular interest is the fact that the Court set out some subjects that those statements of case should address.
The second decision also addressed statements of case on essentiality and the practical way in which such cases could be run at trial. However, it also addressed the attempt by Xiaomi to have the pool administrator (Sisvel) dismissed from the action as its asserted patent had been found not to be infringed/essential. The Court kept Sisvel in the action for various practical reasons, noting that whilst the legal basis for that was unclear, this was an evolving area of law and Sisvel's removal from the action at this stage would not be in accordance with the overriding objective. The Court also mentioned that the Judge at the FRAND trial should consider the implications of a pool licence, and whether that could be FRAND instead of a bilateral licence.
There were clear advantages in having a pool administrator as a party, not least for disclosure, evidence and confidentiality purposes.