TQ Delta, LLC v ZyXEL Communications UK Ltd & Anor [2018] EWHC 3651 (Pat) (20 December 2018)

TQ Delta, LLC v ZyXEL Communications UK Ltd & Anor [2018] EWHC 3651 (Pat) (20 December 2018)

TQ Delta may amend its Statement of Case to clarify the scope of the RAND licence to include all entities within the Unizyx Group, as ZyXEL would not be prejudiced. However, the alternative calculation of the RAND royalty and the new comparable licence may only be introduced if TQ Delta accepts an adjournment of the RAND trial, as ZyXEL would otherwise be prejudiced and unable to respond adequately in the time available. Dr. Nedev's expert evidence is excluded as its deficiencies cannot be remedied in the available time. The trial may proceed on the existing date only if TQ Delta abandons reliance on the new licence and alternative calculation; otherwise, the RAND trial will be adjourned.

Citation
[2018] EWHC 3651 (Pat)
Parties
Claimant: TQ Delta, LLC; Defendant: ZyXEL Communications UK Limited; Defendant: ZyXEL Communications A/S
Jurisdiction
England and Wales
Judgment Date
20 December 2018
Procedural Posture
Patent Litigation (pre Trial Review) / Pre Trial Review; Interlocutory Applications
Outcome
Conditional permission to amend; exclusion of certain expert evidence; conditional adjournment of RAND trial
Legal Topics
RAND Licensing, Pleadings Amendment, Admissibility of Expert Evidence, Comparable Licences, Patent Essentiality Review
Intellectual Property Patents RAND Licensing Pleadings Amendment Admissibility of Expert Evidence Comparable Licences Patent Essentiality Review

Case Brief

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Parties

TQ Delta, LLC

Claimant

ZyXEL Communications UK Limited

Defendant

ZyXEL Communications A/S

Defendant

Procedural Posture

Patent Litigation (pre Trial Review) / Pre Trial Review; Interlocutory Applications

Legal Issues

  1. 1 Whether TQ Delta may amend its Statement of Case to expand the scope of the RAND licence to additional entities
  2. 2 Whether TQ Delta may amend its Statement of Case to introduce an alternative calculation of the RAND royalty
  3. 3 Whether TQ Delta may amend its Statement of Case to introduce a newly executed comparable licence

Ratio Decidendi

TQ Delta may amend its Statement of Case to clarify the scope of the RAND licence to include all entities within the Unizyx Group, as ZyXEL would not be prejudiced. However, the alternative calculation of the RAND royalty and the new comparable licence may only be introduced if TQ Delta accepts an adjournment of the RAND trial, as ZyXEL would otherwise be prejudiced and unable to respond adequately in the time available. Dr. Nedev's expert evidence is excluded as its deficiencies cannot be remedied in the available time. The trial may proceed on the existing date only if TQ Delta abandons reliance on the new licence and alternative calculation; otherwise, the RAND trial will be adjourned.

Court Disposition

Conditional permission to amend; exclusion of certain expert evidence; conditional adjournment of RAND trial

Orders

  • TQ Delta permitted to amend its Statement of Case to clarify scope of RAND licence to Unizyx Group.
  • TQ Delta may introduce new comparable licence and alternative RAND calculation only if RAND trial is adjourned.