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Delhi High Court seeks full access to China's Nokia-Oppo FRAND rate ruling

22. 12. 2023 Friday / By: Robert Denes / Business / Exact time: BST / Print this page

In the latest development in the 5G patent licensing dispute between Nokia and Oppo, the Delhi High Court on Monday ordered each company to hand over a full, unredacted copy of the FRAND ruling issued by the Chongqing Municipal No. 1 Intermediate People's Court. And there isn't much room for maneuver - the deadline is the next hearing, which is scheduled for tomorrow.

Monday's hearing was a hybrid and included Chinese handset maker Vivo. Vivo is currently embroiled in a parallel dispute with Finnish giant SEP over similar claims in several different jurisdictions.

The Vivo case with Nokia has quite a few parallels with the Oppo mishaps, including a Delhi court ordering each executive to post bail and a German court granting an injunction against both last year.

In the Oppo-Nokia case, Justice Prathiba Singh wrote that the Chinese decision "will clearly affect the decision-making in the actions in which the judgment is reserved." However, neither the companies nor their Indian lawyers nor the court were given access to an unredacted copy of the judgment or the FRAND exchange rate it determined, he said.

According to the Delhi court, for the time being only the Chinese lawyers of Oppo and Nokia have access to the details, who are also not obliged to disclose this even to the parties themselves. "[We have to admit] that the current situation is quite spicy to say the least," the court said.

Last month, in an earlier hybrid hearing, both Oppo and Vivo said they were unwilling to allow the Delhi High Court to set a global FRAND rate in their dispute with Nokia. However, Oppo and Vivo have said that they will stick to the India-only measure.

Oppo stated: “OPPO is willing to accept and abide by the Indian FRAND rate determined by the Indian court, i.e. Nokia's Indian portfolio and the defendant's sales in India, subject to the defendant's right of appeal. OPPO ensures that the Indian FRAND rate determined by an Indian court will prevail in India and will prevail over any FRAND rate determined by any other foreign court."

Meanwhile, at the same hearing, Vivo stated, "Vivo is willing to accept and abide by the Indian FRAND rate determined by the Indian court, i.e. Nokia's portfolio in India and the defendant's sales in India, subject to the defendant's right to appeal. Vivo assures that the Indian court Indian FRAND rate determined by the Indian FRAND rate shall prevail in India and shall prevail over any FRAND rate determined by any other foreign court.

The court stated that, based on the above, "it is clear that the defendants are not willing to have the Court determine a global FRAND exchange rate".

Judge Singh initially opened the possibility for the Delhi court to impose a global FRAND rate in October on condition that Nokia withdraws its lawsuit against Oppo in the High Court of England and Wales and Oppo withdraws in China.

The court also suggested during hearings in October that the two sides would use an expedited process to resolve the lawsuit for both SEPs and non-SEPs, rather than a court ruling on Nokia's request for a temporary injunction. However, since the companies could not reach a consensus on how to speed up the trial, the court decided to rule on all requests for injunctions filed in each dispute. Later, news emerged that the Chongqing court had issued its own global FRAND rate determination. However, the Delhi court lamented that while both Oppo and Nokia were aware in an email dated December 15 that the judgment had been released and was public, "the Court was not informed about it".

Mark Cohen, University of California, Berkeley, is a distinguished leader According to his colleague and the former Chinese IP attaché of the United States, this move could be Oppo's "fallback strategy".

The Delhi court's request for full access to the Chinese decision indicates that they are eager to understand the basis of the global FRAND definition. But given the importance of the market to Oppo, it is unlikely that the court will consider the non-voluntary global exchange rate set by the Chinese court as binding.

Clark noted that Oppo "cannot afford to trouble an Indian court" given the market there. Vivo and Oppo may want to “argue the Chongqing global rate in other places, but the Indian market is too big to have that argument and be banned,” he said. "It will be very interesting to see whether other courts accept the non-voluntary global exchange rate as binding," he added.

But even the jurisdictions of the ongoing Oppo-Nokia dispute are up in the air, or so according to the Delhi High Court, which noted that "there is no consensus even on this issue."

Nokia, Vivo and Oppo declined to comment further...

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