Will The Public Suffer? Let's Stay!

A recent decision from the UK Court of Appeal in Adaptive Spectrum and Signal Alignment Inc. v British Telecommunications Plc. has shown that the UK courts are prepared to impose injunctions on big telecoms operators, but that in doing so consideration may well be given to the effect an injunction will have on the public.

In December 2013, ASSIA (Adaptive Spectrum and Signal Alignment, Inc.) brought an action against BT (British Telecommunications Plc.) for infringement of two of its European (UK) patents (EP2259495 and EP1869790). Specifically, ASSIA alleged that BT's so-called Rate Adaptive Management Box, or RAMBo, part of BT's dynamic line management system, infringed its patents, which relate to methods of managing various transmission parameters used in DSL systems.

In a typical DSL system, communication between an end user and an internet service provider is carried out between a modem located at the end user's home or premises and a modem located in a street cabinet or telephone exchange. The two modems must use a common protocol with commonly defined parameters to communicate. It is these parameters that the RAMBo, and the methods of ASSIA's patents, dynamically manages.

In the High Court, Mr Justice Birss found the '495 patent valid, but not infringed by any of BT's systems, and the '790 patent both valid and infringed by the RAMBo in BT's NGA system. NGA, or Next Generation Access, is the name given to BT's fibre-optic broadband offerings, covering both retail and wholesale services. Both parties appealed.

On appeal, the Court confirmed that the '790 patent was both valid and infringed, but found that the '495 patent was, in fact, also infringed by the NGA RAMBo. As the parties were unable to agree on a final order, the Court of Appeal provided judgement on its terms.

After the appeal, BT faced the possibility of a new injunction as a result of the substituted finding of infringement of the '495 patent. The infringing RAMBo devices are located in each of the telephone exchanges that have been upgraded to provide BT's NGA services, and are used to provide service to every end user of both BT's own fibre-optic NGA broadband offerings and re-sold BT Wholesale services. This is, obviously, a large number of infringing devices, a large portion of BT's UK-based customers and revenue, and a large part of the UK's internet-using public.

BT sought a stay of the injunction on the '495 patent to enable it to make alterations to its systems...