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England and Wales High Court (Patents Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> TQ Delta, LLC v Zyxel Communications UK Ltd & Anor [2019] EWHC 353 (Pat) (19 February 2019) URL: http://www.bailii.org/ew/cases/EWHC/Patents/2019/353.html Cite as: [2019] EWHC 353 (Pat) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
7 The Rolls Building Fetter Lane London, EC4A 1NL |
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B e f o r e :
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TQ DELTA, LLC (organised under the laws of the State of Delaware) |
Claimant/ Respondent |
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- and - |
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(1) ZYXEL COMMUNICATIONS UK LIMITED (2) ZYXEL COMMUNICATIONS A/S (a company incorporated under the laws of Denmark) |
Defendants/ Applicants |
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1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Email: [email protected]
Web: www.martenwalshcherer.com
MR. BRIAN NICHOLSON and MR. DAVID IVESON (instructed by Pinsent Masons LLP) appeared for the Defendants/Applicants.
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Crown Copyright ©
MR. JUSTICE HENRY CARR:
Introduction
History of the proceedings
"To assist TQ Delta in making its decision, I will indicate that what I would be minded to do would be to adjourn the RAND trial, but not the technical trial, and to do so for the minimum period necessary to allow ZyXEL properly to respond to the new material that is going to be introduced by amendment."
The parties' cases for the RAND trial
In relation to global licences for FRAND/RAND cases, the principles have been very clearly set by the Court of Appeal, in particular in Lord Kitchin's judgment in Unwired Planet v Huawei. As a result, hearings ought to be relatively straightforward and relatively simple.
Amendment of the pleadings and the evidence of Dr Nedev
Trial date
"333. Dr Cooper was asked to review the findings of a sample of the patents which the HPA deemed to be essential to an LTE handset that had a pre-2009 priority date. Dr Cooper randomly selected a sample of patents of a size that would allow him to draw conclusions with at least 90% confidence about the pool from which the sample was drawn. This resulted in Dr Cooper reviewing 38 Samsung and 30 Huawei patents and he spent 5-6 hours per patent family. He concluded that the essentiality rate of the Samsung patents (excluding optional features) was at most 16.6% and then revised that further to 15.9%. For the Huawei patents he concluded that the essentiality rate (excluding optional features) was at most 9.4%. Unwired Planet used that 16.6% figure at step (7) of the revised MNPA.
"334. Unwired Planet point out that in his second statement Dr Kakaes was not surprised that having spent 5-6 hours per patent family, Dr Cooper had found a number of patents not essential which the HPA had deemed to be essential. They point out that Dr Kakaes went on to agree with Dr Cooper about a substantial number of the patents in his study. The major criticism made by Dr Kakaes was about the sampling process. I will deal with that after the other points.
"335. The detailed points were these. First, there were patents excluded based on Dr Cooper's definition of LTE. However, I am satisfied that at best this would make little difference to the end result. At best the point changes the result for two patents. The impact of that can be seen from the fact that changing the result for one patent moves the answer from 15.9% to 16.6%. The point does not undermine Dr Cooper's position as a witness. Second, there are patents which Dr Cooper found were not essential because they were not implemented (optional). As Dr Kakaes explained that was not part of his approach. If Unwired Planet had then tried to use the crude fractions for options applied in the Original MNPA as well there would be more to this point. I find Dr Cooper was justified in doing this although one needs to keep in mind that excluded this way are LTE TDD, which is used in China, MIMO and carrier aggregation. Third, there were cases in which Dr Cooper and Dr Kakaes maintained their disagreement about particular patents. I am not asked to resolve technical disagreements at the level of individual patents. Based on my assessment of both experts, I am sure the disagreement represents cases in which reasonable people can differ."