English High Court Declines to Refer SEP/FRAND Questions to CJEU

In a recent judgment (Optis Cellular Technology LLC v Apple Retail UK Ltd & Ors [2020] EWHC 2033 (Pat)), the England and Wales High Court refused an application to refer questions to the Court of Justice of the European Union (CJEU) in a case related to standard essential patents (SEP) and licensing on fair, reasonable and non-discriminatory (FRAND) terms.

Apple, the defendant in the case, requested that a number of questions related to licensing on FRAND terms be referred to the CJEU even though these questions related to issues due to be heard at a later trial. The reason Apple brought this request now is because after the transition period for the UK leaving the European Union ends on 31 December 2020, it will no longer be possible for English courts to refer questions of law to the CJEU.

The judge (Birss J) dismissed the application for various reasons to do with timing. Birss J also noted that the UK Supreme Court recently felt able to decide on points of law similar to those raised in Apple's proposed questions, without a reference to the CJEU, in the case of Unwired Planet v Huawei, and indicated that he expected the national courts to be able to do so in this case. For more details on this recent landmark UK Supreme Court decision (Unwired Planet v Huawei), which relates to FRAND licensing, please see our briefing here.