Pricing Stays Private: Appellate Court Draws The Line On FRAND Transparency

The Court of Appeal has provided important guidance on when confidential information in FRAND judgments may be redacted, with particular emphasis on material concerning third parties. The decision arose in the context of an appeal addressing the scope of redactions to a 2023 FRAND judgment in litigation between Optis and Apple concerning Optis' mobile telecommunications standard‑essential patents. During those proceedings, the parties relied on licence agreements between Optis or Apple and various third parties as comparables to inform the FRAND rate. The full judgment, which contained sensitive commercial terms including lump‑sum payments and unpacked per‑unit rates, was initially kept confidential. A non‑confidential version was later issued, followed by a proposed, less‑redacted version whose public release was stayed pending the appeal to determine the proper treatment of confidential material.

On appeal, a number of third‑party licensors, including InterDigital, Qualcomm, Nokia, Google, Huawei and LG, opposed publication of their financial and commercially sensitive terms, contending that disclosure would cause them harm. The Court of Appeal accepted that concern and confirmed that both lump‑sum figures and unpacked per‑unit rates derived from third‑party licences must be redacted in any public judgment. The Court found that disclosure would cause "real commercial harm" and that redaction was therefore "the right thing to do in the interests of justice," notwithstanding the derogation from the principle of open justice. The Court reaffirmed that open justice admits of limited exceptions, including where information is confidential and its release would cause harm to a party or non‑party. The ultimate question is a fact‑sensitive balancing exercise in which the court weighs the public interest in open justice against the risk and extent of commercial harm from disclosure.

The Court also addressed the proper interpretation of the Court of Appeal's recent decision in JC Bamford Excavators v Manitou [2023] EWCA Civ 840. It rejected the trial judge's view that JC Bamford established a new, freestanding test under which balancing may be dispensed with where the information qualifies as a technical trade secret rather than merely confidential. While JC Bamford concerned technical trade secrets, it did not create an exception to the requirement to balance competing interests. The Court of Appeal held that balancing is always required; however, in cases involving genuine trade secrets, the nature of the information will generally mean that protection is necessary and open justice will, in practice, yield.

This judgment consolidates a pragmatic approach in FRAND cases: courts will protect granular commercial terms—such as lump sums and unpacked rates—where disclosure risks distorting negotiations, undermining competitive dynamics, or otherwise causing real commercial harm, particularly to third parties who have not chosen to litigate. At the same time, the Court underscored that redaction remains an exception that must be justified on the facts, reaffirming the centrality of a case‑specific balancing exercise rooted in the interests of justice.

InterDigital, Inc & Ors v Optis Cellular Technology LLC & Ors [2025] EWCA Civ 1263

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