UK Court Of Appeal Clarifies Redaction Test In Optis V Apple FRAND Licensing Dispute

How to maintain redactions of confidential information in litigation papers and judgments

Victory for InterDigital, Nokia, Huawei, Google, Qualcomm and LG in Optis v Apple standard essential patent (SEP) and fair, reasonable and non-discriminatory (FRAND) dispute

In this insight, we examine how UK courts approach the redaction of confidential information in litigation. The Court of Appeal's October 2025 decision in Optis v Apple provides authoritative guidance on balancing the interests of justice with the principle of open justice, thereby clarifying the legal test for redactions and the rights of third parties seeking to protect confidential information in UK disputes.

How does the Court of Appeal protect confidential information in UK FRAND judgments?

On 7 October 2025 the Court of Appeal handed down its second judgment in the Optis v Apple FRAND proceedings (Optis v Apple [2025] EWCA Civ 1263). Lord Justice Birss gave the leading judgment, with which the other judges (Sir Julian Flaux, Chancellor of the High Court, and Lord Justice Zacaroli), agreed. The court was asked to what extent a UK court should redact confidential third-party information in a FRAND judgment but the principles and approach the court took are applicable to all litigation.

The judgment:

1. Clarifies the test for redaction of confidential information, confirms that courts will redact confidential information if it is clear that the interests of justice in requiring redactions are stronger than the interests of open justice, and provides guidance to assist parties with this issue.
2. Applies that test to financial information both expressly read from, but also derived from, confidential licences between the parties to the litigation and third parties.
3. Notes important factors specific to licences of Standard Essential Patents (SEP) subject to an undertaking to license on Fair, Reasonable and Non-Discriminatory (FRAND) terms.
4. Provides general guidance for the courts on achieving justice, including in relation to the basis on which third parties can apply for corrections of errors under the slip rule.

Context to the dispute between Optis and Apple

Optis and Apple have been locked in multi-jurisdictional litigation for some time concerning the FRAND rate and terms for Apple's use of Optis' patented technology.

The High Court gave judgment on 10 May 2023 ([2023] EWHC 1095 (Ch)) and held that the FRAND lump sum figure payable by Apple was $56.43 million (excluding interest) for a global 2G, 3G, 4G and 5G licence expiring upon expiry of the last of Optis's licensed patents. Optis appealed and the Court of Appeal gave its main FRAND judgment on 1 May 2025 ([2025] EWCA Civ 552) and ordered that the FRAND lump sum figure be increased to $502 million (excluding interest), or over $700 million inclusive of interest.

As is usual in SEP/FRAND disputes, Optis and Apple each relied on "comparable licences" in putting forward their cases as to what was FRAND for a licence between them. These licences invariably include terms imposing obligations of confidence on the licence parties, and certain terms (in particular, financial terms) are generally regarded by both licensor and licensee as highly confidential.

The High Court FRAND judgment was originally handed down unredacted to the parties and made public in a conservatively redacted version. The judge (Marcus Smith J), then held three hearings to determine which redactions should be lifted in a final public judgment. Those redactions concerned information from the comparable licences. The Judge heard submissions from Optis and Apple during all three hearings but permitted the counterparties to the comparable licences (third parties in the proceedings) to provide submissions only once. He then issued a further, "consequentials judgment" on 14 February 2024 ([2024] EWHC 197 (Ch)), dealing primarily with confidentiality of the comparable licence information referred to in his FRAND judgment. The Judge held that lump sum payments taken directly from the comparable licences should stay redacted, as should the total value of the stack of SEPs derived from the comparables, but that figures derived from the lump sums, for example derived per unit royalty rates, and derived aggregate averages and totals, should not be redacted.

Multiple counterparties (InterDigital, Qualcomm, Nokia, Google, Huawei, and LG) appealed, focusing on the publication of actual and derived financial information and maintaining that both sets of information are highly confidential and should remain redacted.

Key points from the UK Court of Appeal's judgment

The principles of open justice and the interests of justice

In relation to justice, Birss LJ noted that transparency and open justice are crucial in a democratic society. The default position is therefore that hearings will be conducted in public, and judgments will be made available to the public unredacted. However, there are exceptions to open justice, which might justify the court sitting in private, or judgments being made available to the public only in a redacted form, where the interests of justice itself displace the usual requirement for open justice. These exceptions were at the heart of this case.

What test do UK courts apply when deciding whether to redact confidential information?

In the consequentials judgment Marcus Smith J had decided that there were two tests to determine whether confidential information should be redacted:

• the "old test", developed by the courts in prior SEP/FRAND litigation (including Unwired Planet v Huawei [2017] EWHC 3083 (Pat) and InterDigital v Lenovo [2023] EWHC1577 (Pat)), which required a balancing of interests, and
• the "new test", which arose in JC Bamford v Manitou [2023] EWCA Civ 840 as a result of the Trade Secrets (Enforcement, etc) Regulations 2018 (SI 2018/597) (the "Trade Secrets Regulation"), and which displaced the old test for trade secrets.

Marcus Smith J held that under the "new test" if information fell within the definition of a "trade secret" in the Trade Secrets Regulation then the court would be required to redact that information from a judgment without any consideration of the balance between open justice and the interests of justice.

However, the Court of Appeal held that there is no "new test" of confidentiality, instead confirming that there is only one test when considering redaction and that test does require the courts to balance open justice and the interests of justice, as reflected in Unwired Planet v Huawei and InterDigital v Lenovo.

Birss LJ referred to the principles set out in his judgment in Unwired Planet as still being relevant, in particular paragraphs [23] and [24], which stressed that redactions require "powerful reasons, supported by cogent evidence which addresses the details", and that factors which will be relevant include:

1. The nature of the information itself (technical trade secrets or private information about family life may be more readily redacted).
2. The effect of publication of the information (publication of technical trade secrets would destroy the technical trade secrets themselves).
3. The nature of the proceedings (confidential information may be redacted in competition law claims to encourage leniency applications).
4. The relationship between the information and the judgment (for this factor, the more important the information to the understanding of the judgment, the less likely it will be appropriate to redact).
5. The relationship between the person seeking to restrain publication of the information and the proceedings themselves (third parties may be better placed to secure redaction than a party which has relied on its own confidential information to make good its claim).

JC Bamford v Manitou confirms strong protection for technical trade secrets but does not replace the balancing exercise. Further, the Trade Secrets Regulation (and European Directive 2016/943/EU which it implements) does not mandate automatic redaction of all items meeting the Trade Secrets Regulation's broad definition of "trade secret".

The court confirmed that in all cases, the question is whether, in the circumstances, the principle of open justice gives way to the interests of justice itself. However, some cases may more readily meet this criterion (e.g. the interests of justice will almost always require the redaction of a technical trade secret, because otherwise the result of the action would be the loss of the right, which was sought to be protected, regardless of the outcome between the parties).

How do UK courts treat financial terms?

Although the findings in relation to the financial information in this case are fact-specific, and in the context of a SEP/FRAND dispute, and so may not be applicable in every case, there are several key trends emerging from this case, InterDigital v Lenovo, and Unwired Planet v Huawei regarding redactions which are generally applicable.

In all three cases financial terms were redacted.

In the current case, the following points were emphasised by Birss LJ:

• Confidential financial terms should be redacted whether those terms are:
  • taken directly from a licence itself e.g. the price paid whether that is a lump sum or a price per unit,
  • derived from a licence e.g.: an unpacked per unit rate derived from the actual lump sum paid, or
  • aggregated figures which take into account a number of licences (e.g.: totals, averages) which might facilitate inference of redacted entries which would undermine the redactions.
• Relevant factors which led to redaction included:
  • evidence from the affected parties that publication of commercial licensing information would materially weaken the competitive position of the relevant party,
  • the fact that the confidential information sought to be protected was relatively recent (in Unwired Planet v Huawei this included a licence which had expired five years before judgment), and
  • the fact that a licence was with a counterparty i.e. a third party, not a party to the action, who had no choice in relation to the existence of the litigation and subsequent use and disclosure of their licence and stood to gain nothing from the litigation.
• Non-financial terms generally do not justify redaction absent specific evidence of harm.

Important factors specific to licences of SEPs subject to an undertaking to license on FRAND terms

There are also several points raised by the Court of Appeal judgment which are more directly relevant to redactions in FRAND determinations. These include:

• Recognition that if a licence was relevant to determining a FRAND rate in litigation, then for the same reason it must be at least potentially relevant in FRAND negotiations more generally, i.e. with other parties.
• Acceptance that publication of financial information in one licence will cause disadvantage in other negotiations.
• Noting that the European Telecommunications Standards Institute (ETSI) Intellectual Property Rights (IPR) Committee was asked to consider whether its IPR Policy should require FRAND licences to be made publicly available and decided that the Policy would not require such disclosure
• Redaction of information was justified even if the information in the judgment was incorrect or might allow an incorrect reverse-engineering of (e.g.the lump sum payable), as that incorrect information would still be used in negotiations, and the only way to rebut that incorrect information would be to disclose the correct (and confidential) information.

Can third parties request corrections under the UK slip rule?

Part of the appeals also related to the refusal by Marcus Smith J to correct various factual errors, notified by the counterparties in the FRAND judgment under the slip rule. In particular, the Judge generally considered that non-parties to the action were not entitled to be involved in the correction or errors in a judgment that is handed down and final, and therefore are only allowed to advance corrections in a narrow set of circumstances, namely if:

1. the correction is of an objective error which all parties concerned agree is an error,
2. the correction is entirely immaterial to the judgment, and
3. the correction can be achieved without any form of rewriting.

The Court of Appeal disagreed with this analysis. The part of the rules that stated "A party may apply for a correction [under the slip rule] without notice" was permissive, in that it allowed a party to apply without notice, not restrictive, in that it did not allow a non-party to apply. Furthermore, (i) agreement between the parties was not a prerequisite; (ii) the error might be a slip, and yet highly material; and (iii) it might well require re-writing.

As well as the need to balance the needs of justice and open justice discussed above, another important point made in relation to justice generally is that where confidential information is confidential to both a party to a dispute and a third party (here, a counterparty to the licence containing the confidential information), the third party should always be afforded the possibility to be heard by the court in relation to the issue of confidentiality in particular when a hearing takes place at which confidentiality is being discussed.

Key takeaways from the judgment?

• If the evidence demonstrates that financial information is confidential then the courts will redact that information in their judgments.
• Confidential financial information can be both actual and derived information to include unpacked rates as well as total, aggregate and average values.
• Redactions can also be maintained over other information which may be used to 'reverse-engineer' confidential information (and this may extend to incorrect information).
• Most non‑financial licence terms will not be redacted.
• JC Bamford applies protection for technical trade secrets but does not displace the established "balancing" between open justice and the interests of justice when considering the correct treatment of confidential information.
• Slip rule corrections can be made at the request of a non-party.

Read the original article on GowlingWLG.com

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.