Acer and Asus win bid to unlock Nokia case documents for ICC arbitration

The Patents Court has ordered that the confidentiality regime governing Acer and Asus's long-running RAND dispute with Nokia Technologies Oy be amended to allow documents produced in the litigation to be used in the parties' forthcoming ICC arbitration.

Handing down judgement on the papers in Acer Incorporated & Ors v Nokia Technologies Oy [2026] EWHC 1939 (Pat), Mr Justice Mellor granted an application brought by Acer and Asus on 14 July 2026, giving effect to an order made by the Court of Appeal on 11 June 2026 that had stayed the underlying RAND trial pending arbitration.

The claimants had sought to amend the existing confidentiality protocol so that legal representatives instructed for the arbitration, whether or not English qualified, could access materials designated confidential in the English proceedings. Acer and Asus argued the change was uncontroversial, noting it reflected terms already contained in adjustable licences signed by Nokia.

Nokia did not oppose the principle of granting access but argued the appropriate route was for any protective order to come from the arbitral tribunal once constituted, rather than from the English court. In a witness statement, Nokia's solicitor Thomas Darvill of Bird & Bird contended that amending the order now would require notifying third parties whose confidential information was affected, and that documents would need to be relabelled, only for the process to be repeated once the tribunal issued its own orders.

Evidence from Hiroshi Sheraton for the claimants, supported by a statement from Sarah Walker of King & Spalding, newly instructed by Asus for the arbitration, disputed that characterisation. Ms Walker pointed out that under ICC Arbitration Rules a tribunal is not constituted until after a Request for Arbitration and an Answer have been filed and an arbitrator nominated, meaning Asus would otherwise have to prepare its response without access to key pleadings. She also noted that Asus was entitled to representation by counsel of its choosing and that Morgan Lewis's existing access to the materials did not remedy the position for King & Spalding.

Mr Justice Mellor accepted the claimants' analysis of prejudice, finding that Acer, Asus, King & Spalding, Morgan Lewis, the parties' experts and the eventual tribunal itself would all be disadvantaged by delay, while the burden on Nokia was limited to sending notifications, a consequence largely of its own approach. He expressed surprise that Nokia had not agreed to the amendment in principle.

On drafting, the judge declined to require advance notice to third parties before amending the regime, on the basis that affected parties already had notice of the existing confidentiality protections, and accepted that documents need not be relabelled given that existing labels would be understood to apply to the order as amended.

Turning to the confidentiality protocol itself, the judge rejected Nokia's proposed restrictions on disclosure to the tribunal, agreed that the tribunal should be empowered to resolve disputes over confidentiality designations without recourse to the English court, and adopted the claimants' proposal that confidential materials generally, rather than only those tied to the final RAND licence issue, should be capable of disclosure into the arbitration, avoiding a two-tier regime.

The parties have been directed to prepare a draft order reflecting the judgement without further delay.