On 11 July 2022, the Court of Appeal confirmed that the English Courts had jurisdiction over Nokia’s claim and that no stay should be granted of the FRAND aspects. Oppo had made both applications (which essentially reduce to a similar forum conveniens question) in an effort to ensure the dispute would be resolved through global rate setting proceedings it had brought in Chongqing.
The UK Supreme Court has now refused Oppo permission to appeal against the Court of Appeal’s order, bringing this latest FRAND jurisdictional saga to an end. In the UK Supreme Court’s decision in Unwired/Conversant the door was left open to raising forum issues in a FRAND dispute for further consideration, but according to the UK Supreme Court this appeal did not raise an arguable point of law.
This slightly contradictory position is not unexpected though. For the UK Supreme Court to accept an appeal, there must be a point of law in issue and it must be important (ideally determinative). In this case, the ‘big picture’ changes since Unwired/Conversant were:
i) Brexit (meaning the rule in Owusu no longer applied, which prevented the English Courts from declining jurisdiction over English defendants on forum non conveniens grounds), and
ii) the courts of the PRC had confirmed their jurisdiction to undertake global FRAND disputes.
However, these have never been potentially determinative legal issues, but rather factual ones (they may well be said to change the balance of factors, but the lower courts have considered them). Other aspects, including that the claim was characterised as a dispute concerning UK patents, had not changed.
In that regard, the question of forum conveniens in FRAND cases technically remains as open as it was before; this is just a reminder that it is only (potentially) open a sliver. The real question is whether there is a point of law (not fact) that has the genuine potential to change the calculus – if and when that point is raised, we may well see the matter being considered again.