- within Intellectual Property, Environment and Coronavirus (COVID-19) topic(s)
- in United States
In a third party appeal concerning the "proper scope of redactions of a non-party's confidential information in a FRAND judgment", the Court of Appeal (CoA) has confirmed the test for redaction of confidential information in FRAND proceedings (InterDigital, Inc. & Ors v Optis Cellular Technology LLC & Ors [2025] EWCA Civ 1263). The CoA considered the commercial implications of the financial data and sublicensing terms that would be revealed in the publication of a "less redacted" version of the judgment as decided by the High Court. The CoA upheld the appeal, allowing redactions of additional material beyond that proposed by the High Court which included, for example, unpacked per unit licensing rates.
The decision will be welcome to parties concerned that their confidential information, which could be relevant to other FRAND licensing negotiations, could become public in UK proceedings. The CoA has confirmed that the question of whether information should be redacted from a judgment remains a balancing exercise between the interests of open justice and harm of revealing confidential information, and that even lower grade financial information – or that information could be reverse engineered in combination with other publicly available information – can benefit from protection. Also weighing in favour of the additional redaction here was that the wider judgment could be understood by the public without seeing this confidential information.
Background
This appeal relates to the recent decision in proceedings between Optis Cellular Techology LLC and others v Apple Retail UK LTD and others [2025] EWCA Civ 552 concerning FRAND licence terms between Optis and Apple in relation to Optis' SEP portfolio. In these proceedings, the CoA revisited the High Court's approach to determining FRAND terms, establishing clear direction for royalty evaluations in UK FRAND cases (see HSF's comments on this case here). Apple lodged an application for permission to appeal this decision to the Supreme Court on 12 August 2025.
As is standard practice in FRAND cases, the main proceedings involved disclosure of various licence agreement between Apple/Optis and third parties. Such licences are used as comparables to help the court assess what are FRAND licence terms. When these licences were referred to in the version of the judgment initially available to the public, confidential information had been redacted, pending an assessment of the proper scope of redactions to be made in the final public judgment.
On 14 February 2024, the High Court held that a "less redacted" version would be published (Optis Cellular Technology LLC and others v Apple Retail UK LTD and others [2024] EWHC 197 (Ch)). The publication of this version was "stayed pending any appeal" by the main parties or third parties to the proceedings. Although Apple and Optis remained neutral, permission to appeal on the confidentiality of licensing information in the judgment was sought by InterDigital, Qualcomm, Nokia, Google, Huawei and LG Electronics, which was granted on 27 September 2024. As such, this appeal was heard following the main appeal proceedings on 9 July 2025.
CoA decision on redaction of confidential information
The CoA allowed the appeals, holding that the lower court had wrongly applied a stricter approach to redacting information. It confirmed that the CoA decision in JC Bamford Excavators v Manitou [2023] EWCA Civ 840 did not introduce a new standard requiring redaction only when information falls within the statutory definition of a "trade secret" in the Trade Secrets (Enforcement, etc) Regulations 2018. Instead, Lord Justice Birss highlighted that the approach remains a "weighing of factors in a balancing exercise" through "a fact sensitive evaluation to find out whether, in the particular circumstances, the interests of justice outweigh the principle of open justice". The CoA also noted that "redactions will require powerful reasons, supported by cogent evidence which addresses the details. Generalities will not do".
The CoA drew a distinction between 'technical trade secrets' – i.e. information relating to a product or process – and other confidential information, such as financial information. In respect of the latter, it noted that "even lower grade financial information is entitled to protection in some circumstances".
The financial information in the present case included percentage rates calculated by unpacking lump sum licences, and the implied lump sum figures calculated by manipulating lump sum data. The High Court had declined to redact this information for various reasons, including that it would be difficult to reverse the unpacking process (re-pack) to derive the original figures. However, the CoA accepted that disclosure of these unpacked figures would cause real commercial harm because they would still reveal confidential information about the underlying licence – essentially the price the parties to a given licence were willing to accept.
As such, in the current appeal the CoA came to the following conclusions:
- In relation to financial data, the CoA held that redactions were justified, as publication of lump sum and unpacked per unit rate figures can cause "real commercial harm", and averages and totals (even though derived) should also be redacted so as not to "undermine the redaction of the financial details".
- The CoA did not permit redaction of general sub-licensing provisions, finding that redaction of such terms is not justified unless specific evidence of commercial harm is provided.
Thus, the CoA concluded that the correct approach to redaction of information remains a context-specific balancing exercise. It confirmed that, where technical trade secrets are involved, "it will almost always be necessary to protect such a secret because of the nature of that kind of information" and that some "lower grade confidential information" such as financial data can be "entitled to protection in some circumstances".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
