Apple Inc (intervener) in Ericsson v ASUSTEK & Anor (UPC_CoA_631/2025 and UPC_CoA_632/2025)
Decision date:
23 September 2025
Osborne Clarke summary
- This decision from the Court of Appeal concerned an application by Apple to intervene in proceedings between Ericsson and ASUS.
- On 14 June 2024, Ericsson filed two infringement actions against ASUS, Arvato and Digital River Ireland (jointly, ASUS) at the Milan LD. ASUS subsequently filed a statement of defence for each infringement action and filed a counterclaim for revocation in each case. They also filed applications for protection of confidential information through a confidentiality regime.
- In response to the applications for entering into a confidentiality regime, Ericsson announced that it intended to submit one or more exhibits to the court containing information from and on licence agreements between Ericsson and third parties. Ericsson requested to apply an “external eyes only” regime in relation to the confidential documents submitted by ASUS, as well as to the documents to be submitted by Ericsson. This would have meant that access to these confidential documents was only provided to one expert on each party’s side and each party’s outside counsel.
- The judge-rapporteur established a confidentiality regime for the certain confidential documents, but rejected the adoption of an “external eyes only” regime.
- The Milan LD panel reviewed the judge-rapporteur's orders and dismissed Ericsson’s applications for review.
- Ericsson filed appeals against the panel review orders, requesting that the Court of Appeal order an "external eyes only" regime with respect to certain specified documents and to uphold the confidentiality orders in all other respects.
- Apple filed an application to intervene under Rule 313 RoP, requesting that the Court of Appeal allow Apple to intervene to support Ericsson because certain agreements contained highly confidential information relating to Apple. ASUS requested that the court reject Apple's application in its entirety.
- The Court of Appeal admitted Apple as an intervener. ASUS had sought to argue that Apple did not have an interest in the final outcome of the action and its interest in a "side question" was not sufficient. The court rejected this, noting that under Rule 313.1 RoP an application to intervene may be lodged at any stage of the proceedings by any person establishing a legal interest in the result of an action submitted to the court. Rule 313.2 RoP states that an application to intervene is admissible if it is made in support, in whole or part, of a claim, order or remedy sought by one the parties. The Court of Appeal held that these provisions do not require the applicant to have a legal interest in the final outcome of the action.
- In this case, the Court of Appeal found that Apple had a legal interest in the order sought as the confidential information at issue included information on agreements between Ericsson and Apple. The fact that Apple was a party to the agreements was sufficient for it to be admitted as an intervener.
- Whether Apple's concerns are well-founded and whether they are sufficient to grant the orders sought by Ericsson was left to be decided in the appeal proceedings before the Court of Appeal.
Issue
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