Warner Bros Discovery Inc & Anor v Paramount Skydance Corporation & Anor

MR. JUSTICE MEADE:

1. This is an application to expedite the trial of the RAND issues in these two proceedings, one brought by Warner Bros and one brought by Paramount which, pursuant to earlier directions in the litigations, are being case-managed together. The application is to expedite the trials to the earliest possible time in the Michaelmas term of this year. As often happens, the dispute between the parties has narrowed because Nokia does not oppose expedition into the Michaelmas term, so long as it is no earlier than 23rd November. Warner Bros and Paramount maintain the position that it should be as early as possible in the Michaelmas term.

2. Mr. Lykiardopoulos, King’s Counsel, appeared for Warner Bros, Mr. Mehta for Paramount, and Mr. Saunders, King’s Counsel, for Nokia, and save where it is necessary to distinguish, I will refer to Warner Bros and Paramount together as “the claimants”.

3. The basic arguments and the basic justification for expedition are familiar now in these types of FRAND or RAND disputes and they arise from the fact that in litigation in other jurisdictions, the patentee, Nokia, is seeking injunctions which will jeopardise, it is said, the claimants’ businesses. The position is somewhat complicated because there are a number of foreign proceedings which, to some extent, do or do not overlap and may or may not be before or after the determination of a RAND trial here but, in general terms, Warner Bros faces an injunction risk in the UPC at some point between October 2026 – February 2027 and in Germany, also between October and February, but with a slightly greater question-mark over the German date because of re-arrangement of judicial personnel in those courts, whereas on the evidence, Paramount faces an injunction risk in Brazil between July and September 2026, in Germany between October and November 2026, the German national courts, and in the UPC, between the last quarter of this year and the first quarter of 2027. In each instance, of course, a question will arise, although I did not hear much argument about it, if any, as to whether any of those courts will pronounce a result and declare an injunction at the hearing or reserve their judgments.

4. I do not think I need to say much more, if anything, about Brazil because the speed of the proceedings there mean that a RAND trial here cannot forestall or affect the result and, in any event, for example, Paramount's position is that it simply does not infringe the relevant patents in Brazil and, as I understand the position, Paramount does not seek a RAND licence, at least on the current pleadings, over the video standard relevant to the infringement allegation in Brazil, which is AVC. Therefore, I can focus, for present purposes, really, on the injunction risk arising in each case according to the timetables I have indicated in the UPC and in Germany.

5. There are other aspects of the strategic timetable in this and related litigation that I think it is worth having in mind to reach a fair conclusion on this hearing. One is that a number of the issues, important issues in this litigation, also arise in the Nokia versus Asustek, Acer and Hisense litigation, where Mellor J recently gave judgment in his interim licence decision and that is provisionally to be tried, the RAND trial in those proceedings, this summer and, as I understand it, at least the following basic issues arise in that litigation which arise in this litigation, namely whether the RAND obligation under the ITU regime potentially or in fact extends to encoding as well as decoding patents and also the availability of specific performance.

6. It is not appropriate or practical today to make any conclusion, even a provisional conclusion, about it, but as I indicated to the parties, thought ought to be given to whether it is possible for the claimants in this litigation to participate in the trial in that other litigation in the summer so that these issues are not tried twice and also to remove some issues from the Michaelmas trial in this litigation if I grant expedition, but that cannot be determined today, not least because it was only a thought raised by me. These parties have not had a chance to consider it and, still less, have the other parties in the Nokia versus Asustek, Acer and Hisense litigation. That will need to be raised with them.

7. However, in any event, for practical purposes what is clear is that Nokia already has to prepare for those issues to be tried in the summer. That means that Nokia's state of preparedness for this litigation already is significant and will become more significant. Nokia is by no means starting from a standing start, but at the same time Nokia has the very substantial burden for itself and for its external advisers of preparing for that very large trial in the summer. Mr. Saunders made submissions to me about the difficulty of Nokia participating in that trial and then moving swiftly to this one.

8. The other strategically important aspect of the litigation landscape, to my mind, is Nokia's position that it is willing to grant a licence to all of the patents in issue between it and the claimants, whether those are (1) decoding SEPs, not relied on by Nokia in the infringement proceedings, but invoked by the claimants in their RAND claims, (2) patents relating to decoding, which are said by Nokia to be not RAND-encumbered and therefore not truly SEPs, but which the claimants say are in practice required to operate the standard and therefore RAND encumbered, and (3) what might be called true NEPs, one of which at least is in issue in Germany and I think, also, the UPC and which the claimants contend must be licensed as part of the non-discrimination limb of RAND because of Nokia's licensing practice. I am simply noting the parties’ contentions without even beginning to comment on the merits.

9. In any event, Nokia is prepared to have an arbitration to set a price for all of these patents without requiring the claimants to prove that they are in fact entitled to such a licence, and its arbitration proposal, if accepted, would also involve Nokia’s desisting from seeking injunctions in the global litigation. Despite Mr. Saunders' submissions to the contrary, it seems to me that it is not unfair to categorise the purpose, or one purpose, of all of the global litigation by Nokia, including the injunction risks that it poses, as being one way to persuade or coerce the claimants to enter into Nokia's preferred dispute resolution mechanism of arbitration.

10. I entirely understand Nokia's carefully thought-out preference for arbitration and I do not deprecate that in the least but, strategically, what is going on here is Nokia's ramping up the numbers of litigations and the jeopardy they pose to the claimants as a tool to bring about an arbitration which the claimants otherwise would not agree to. I do not accept, to the extent it is argued by Nokia, that arbitration is the only place where a price could be set for the entire relevant Nokia portfolio of SEPs and NEPs by consent of Nokia. It could be done in this court (which I am fairly sure would be agreed to by the claimants) and probably other courts as well, but Nokia is not willing to do that.

11. That does not directly, of course, answer the question of whether or not there should be expedition, but it fortifies to my mind a point made by both claimants, which I would have accepted anyway, which is that it is, to a very large extent, a self-inflicted injury on Nokia's part that it is so very burdened with a number of international litigations. If Nokia wanted to reduce them to one – a rate setting trial for its whole portfolio - I believe that it could do so and it has made a conscious decision not to do that.

12. As I say, that is to some extent a point going to the general justice of the situation and I think within the framework of the legal analysis I have to carry out today, a special factor under the last consideration in the well-known principles from Gore v Geox ( [2008] EWCA Civ 622 ) which is the way that I propose to consider matters today.

13. As I have said already, all of these broad considerations actually only feed into quite a narrow dispute, which is about whether this trial should be expedited to the earliest possible time in the Michaelmas term or to a date no earlier than 23rd November, as Nokia contends.

14. Taking the Gore v Geox factors, I am satisfied that there is a sound reason for expedition and I need not go into that in any greater detail than I have in previous cases. The sound reason for expedition is the injunction risk in other proceedings. It cannot be assumed that even if the claimants are successful to the fullest extent in these proceedings that will necessarily be a cure for any injunction they would otherwise face in other courts. It may not succeed, the other courts may decide to grant an injunction anyway (and that is entirely a matter for them) but I conclude that it is perfectly possible that having a decision about the proposition that the claimants are entitled to a broad licence, which they may or may not succeed in, but a conclusion to that degree and a decision about the rate, so that they can begin to pay, might very plausibly have an effect on the reasoning of foreign courts as to whether the claimants are, in language that those foreign courts tend to use, willing licensees or not.

15. I also consider that that factor is heightened in the present case by the business circumstances of the claimants. I need not go into the details. For Warner Bros, it is rather more focused on corporate transactions, but for each claimant, these are said to be important times for the streaming content which they wish to provide and I think a sound case has been made out that they require certainty.

16. So, for all these somewhat familiar reasons, heightened in the current circumstances of these cases, I conclude that there is a good reason for expedition.

17. As often happens in these cases, I have some tangential and indirect evidence about what the Listing Office is said to have said and it is asserted in a letter, I think from Taylor Wessing, that the Listing Office said that it was possible to have a trial of the currently-estimated length (15 days plus four days pre-reading) in October. I think, actually, all that meant is that the Listing Office did not say that it was impossible, which is a rather different thing. At the moment, it is certainly possible to have a RAND trial in the Michaelmas term of this year, but it is somewhat difficult to conclude exactly when that should be because there are a number of moving pieces, including when it will be possible for the Amazon v InterDigital trial currently set for September to be heard, concluded and judgment given, so that whichever judge hears that trial, probably me, might be free thereafter to take this one. But, in any event, it is possible to have a RAND trial in the Michaelmas term of this year without requiring any other litigant to be bumped out of the list. So, as far as that aspect of the good administration of justice is concerned, that is not an obstacle to expedition.

18. The real dispute turns on whether the difference between some time in October and 23rd November, either on the one hand imposes an additional burden on Nokia so as to make the whole set-up unfair or, on the other hand, removes or significantly reduces the potential impact of the judgment in these proceedings on injunction risk in the German national courts or in the UPC.

19. I have said already that Nokia is not beginning from a standing start. Part of that is because it already has to prepare for Asustek and Acer in the summer (Hisense having settled, I understand), but also because the general setting of the RAND position, as it applies to video streaming, has been extensively litigated by Nokia already with other parties, although those are settled, for example in the case of Nokia v Amazon. I do consider that somewhat broadly and impressionistically, I can be satisfied that Nokia already has a very substantial body of knowledge enabling it to draw on that and advance its preparations for these proceedings rapidly.

20. Nokia relies on the limited number of people internally who can work on this litigation - two particular individuals at Nokia - and it relies on the burden on its current solicitors, Bird & Bird, as well, although Mr. Lykiardopoulos pointed out that in Nokia v Amazon , a different firm of solicitors was used by Nokia.

21. None of these limitation resources is said by Nokia to make it impossible for them to be ready for a trial and, in any event, I would consider that any such argument was undermined as a matter of broad justice by the fact that Nokia has brought this situation about and is maintaining it, to some extent voluntarily, as I have indicated already, and, secondly, that if it wanted to, it clearly could draw on extra resources or different resources as it did in Nokia v Amazon.

22. I note, of course, that preparations for this proceeding will have to take place in parallel at a particularly heavily engaged and difficult time in the immediate run-up to the Asustek/Acer trial in the summer and the hearing of that trial itself. But it is impossible to, I think, at the moment, see exactly what the timing will be vis-à-vis that trial timetable and the proposed trial timetable for these proceedings.

23. On the other hand, I must turn to consider the utility of a judgment in this RAND trial, timing-wise, as it relates to the German and UPC proceedings. It seems to me that it is possible, for example, that the difference between October and mid-November could make a real difference. For example if the UPC does not schedule its hearing until the first quarter of 2027 and then does not give judgment immediately, there could be a real difference as between October and late November, bearing in mind that what is required is for a judge in this court to hear the trial and then give judgment. I think it is possible that the difference between October and mid/late November could be critical as to whether a judgment is possible before an UPC judgment. That is only by way of example; there are other possibilities as well. The same could be said of the German court in the Warner Bros proceedings, where a trial may not take place until February. Although I think it is fair to say the German court is somewhat more willing to pronounce an injunction from the bench at a trial, it does not always happen and, again, they could reserve their judgment.

24. So, my conclusion on that factor is that it is possible that there is a real difference between the beginning of the Michaelmas term and late November. Although not elaborated in oral submissions, the point was made in the claimants’ skeleton arguments that the later in term the trial takes place, the more likely that it will finish right up against the end of term, with the consequent potentially greater length of time to the giving of a judgment.

25. Balancing all those things together, the direction I am going to make is for expedition to the earliest possible time in the Michaelmas term, but I should make clear that there are a number of caveats around that. The first one is that I am assuming, at the moment, that the estimate of 15 days, plus four days’ reading, is robust. That is very largely within the power of the claimants to determine because, at the moment, I am told that they will be running the same case, but that will not necessarily remain the position. I make it clear that if it turns out that there are significant differences between their cases or that they are unable to co-operate, or that additional issues on top of those which might reasonably be anticipated at the moment are introduced, then it may not be possible to keep the trial date.

26. The second thing to say is that, as I sit here today, I am not able to say exactly what the court’s position will be as to the earliest time in the Michaelmas term. It may well be that it does not make sense for the court even to leave open the beginning of October because, for example, it may, when a little more information is available, become apparent that the sensible thing is for me to hear Amazon v InterDigital and then to write my judgment in that case and then to hear this one. So when I say the “earliest possible time in the Michaelmas term”, that does not mean that that overrides what the court can practically provide and I suspect that it is quite likely that in a short time from now it will become apparent that the very beginning of October is not practical. I appreciate the parties will want an answer on that and I will do it as soon as I can but, as I sit here today, I cannot be certain about that. In any event, the direction I make is for expedition to as early as possible in the Michaelmas term for the court’s resources, whatever that may result in happening.

27. There are two other procedural matters that I think are important to deal with. The first one is that there is a disclosure application pending. This will be important. I do not think it is really suggested by Nokia that there will not be some disclosure (this is disclosure of Nokia’s potentially comparable licences). But I commented previously that the application by the claimants looked to me to be too broad and it has not yet been narrowed. On the other hand, it seems to me that Nokia needs to put forward a constructive proposal of what it is prepared to give at an early time. That application is outstanding and I declined to have it heard today when I took the previous hearing in this litigation before Christmas.

28. Mr. Saunders’s proposal is that the disclosure hearing should occur back-to-back with the jurisdiction hearing currently listed for 25th-27th February, on the basis that that has been set down for two days (that is the jurisdiction hearing) but less is likely to be needed. I entirely agree with the submissions made by the claimants that this cannot be allowed to drift. My direction is that the parties, first of all, must, in the next few days, when the claimants have had a chance to read Nokia’s jurisdiction evidence, re-assess the estimate for that hearing and come up with an agreed estimate and, secondly, that Nokia must rapidly put forward its proposal for what may be disclosed. The claimants must rapidly see if they can narrow their application, which I think is almost certainly likely to be appropriate, and, provisionally, assuming that progress is made on those matters, it is the right thing to do to indicate that, if time permits, the disclosure application should be heard back-to-back with the jurisdiction hearing.

29. There was some discussion between counsel about whether the disclosure application would be at the same time or back-to-back with the jurisdiction hearing. I think all that reflects is a perfectly fair concern by Nokia to preserve, formally speaking, the fact that the disclosure application is not heard until after the jurisdiction question is at least considered by the court, whether or not judgment has been given. So they will be in the same court slot before the same judge, with the same bundles and the same documents but, in a formal sense, they ought to be back-to-back.

30. Secondly, it is appropriate, in my view, as one often does when directing expedition, to at least make sure that work is being done to keep the litigation on track until a more complete set of directions can be given. The current proposal by the claimants – and I am taking this from Mr. Lykiardopoulos’s skeleton – is that Warner Bros’ RAND statement of case should come in on 26th February 2026, that is right in the middle of the jurisdiction application, and the Nokia statement of case on 2nd April 2026. In my view, what needs to happen is for Warner Bros to put in, and indeed Paramount, their own positive RAND statement of case, which can set out their positive position without, at the moment, until it is determined, dealing with matters arising from Nokia’s disclosure, and that needs to happen sooner rather than later.

31. This litigation began, in the case of Warner Bros, on 1st November, so Warner Bros have already had all of November and all of December and nearly half of January to be thinking about this and Mr. Lykiardopoulos proposed bringing that date forward to 12th February. I think that is still too late and I will discuss with counsel after the short adjournment the exact time that should be, but I think Warner Bros and indeed Paramount must put in their RAND statement of case absolutely as soon as possible on their own positive position so that Nokia have it to work on.

32. Those are my indications about disclosure, about the disclosure hearing and about the claimants’ statement of case. - - - - - - - - - -