Optis v Apple may go down as one of the great bootleg judgments – highly influential and pored over by aficionados but never officially released.
We were at Managing IP’s annual IP and Innovation Summit in London on June 7 when we first heard that Mr Justice Marcus Smith had finally issued the decision.
As far as I can tell, Florian Mueller’s Foss Patents blog was the first publication to report the judgment that day.
It had been more than a year since the end of the trial to determine a fair, reasonable, and non-discriminatory (FRAND) rate for Apple to pay Optis for its standard-essential portfolio.
According to Mueller, the judgment was handed down on May 10 but hadn’t been published yet.
That’s not unusual, as embargoed draft judgments are typically made available to the parties and their lawyers before a public copy is released.
I initially wondered if there had been another breach of confidentiality. The patent judges at the England and Wales High Court have been anxious to halt the improper circulation of draft judgments before they are officially published.
But, before too long, a trusted lawyer source got in touch with a copy of the judgment, marked clearly as being for public consumption. They had obtained a copy from the judge’s clerk.
“I’m sure you already have it,” the lawyer wrote, “but just in case, here it is.”
Alas, this was, in fact, the first time I had seen the judgment and I was a little confused.
It was nowhere to be seen on the website of the National Archives, the service responsible for disseminating court judgments in the UK.
There seemed to be no copy of it online at all.
I wasn’t the only one who was having difficulty.
One firm got in touch with me offering expert analysis of the decision – once they had seen it.
My lawyer source admitted he also had trouble getting hold of it at first.
My job for the morning became to answer the mundane question: had this judgment actually been published or not?
“Yes and no” was, and remains, the exasperating answer.
I contacted the judiciary press office to ask when the judgment had been published and if it had been made available online.
A spokesperson told me: “The judgment was handed down on May 10. However, the attached is a redacted version that was later released as per the judge’s note at the very start of the judgment.”
The attached was the same version I had already seen and, as far as I know, the only copy anyone except those involved in the case has seen.
Judge Smith’s note at the front of the judgment is dated May 29 and stated that a “more readable” version of the judgment, which is heavily redacted, would arrive soon.
To my knowledge, no other version has appeared yet.
But if that public copy of the judgment had been issued on May 29, why had none of us heard about it until more than a week later?
I asked the press office to clarify where the judgment had been published on that date.
They said the judgment had been available from them since May 30 – May 29 was a bank holiday – and that there was nothing to add on the circumstances of its publication to what Smith had written in his note.
“Judgments are usually published on the National Archives website, but that’s not a service we run,” the press officer added.
So, the judgment had been available since May 30, and here I was a week later.
Was I this late to a major story?
I did what I always do when I am haplessly confused and asked my source to explain. When had this judgment been published?
“That is an interesting question,” he said.
He had known to ask the clerk because the case was listed in the Patent Court’s Daily Causes List on Tuesday, June 6, for handing down the following day.
Poor communication
For those of you still with me, a recap.
A public but unfinished copy of the judgment was “released” on May 29 and was available from the judiciary press office the following day.
But the court doesn’t seem to have told anyone that until June 6, and no one that I know of was able to get hold of the judgment until June 7.
I thought of EU copyright law that assesses whether something has been communicated to the public. No danger of that here.
As far as I’m concerned, the judgment wasn’t published – not satisfactorily, anyway.
It has yet to appear on the website of the National Archives, which took on responsibility for disseminating court decisions last year.
I don’t know exactly why, but I would guess from Smith’s note that the two sides may not have finished haggling over redactions.
If that’s the case, fine, but why does it have to be so confusing?
If a judgment is supposed to be “published,” “available”, or “released” on a certain date, then it should be somewhere that’s easy to find.
We at Managing IP sometimes gripe that judgments from the Court of Justice of the EU or the EU General Court sometimes don’t appear exactly at 10.30am on the dot as advertised, but the margin of error is usually a couple of hours.
Transparency required
Maybe I’m lucky.
Perhaps the judgment will never be released and future case law researchers will wish they had been there at the time when the now-legendary bootleg first circulated.
In 1966, one of the Beach Boys arrived in London with an acetate copy of the still-unreleased ‘Pet Sounds’ and was received as a demigod by The Beatles, who had never heard anything like it.
The Beatles took the creative ambition of that record as a benchmark and continued their own psychedelic explorations on ‘Revolver’ and ‘Sgt Pepper’s’.
I haven’t been to any acid-fuelled reading parties for Optis v Apple, but it was interesting all the same.
The judgment may also prove to be hugely influential for FRAND jurisprudence in the UK. These disputes are worth hundreds of millions of pounds and, in theory, can block consumer access to hugely popular goods.
In other words, these judgments matter and transparency requires that they be published promptly.
One thing I admired about Smith’s judgment was that he went to the trouble of explaining at the outset how the FRAND system works.
It was as if it had been written so that a layperson could understand it.
If only they could read it.
