Justice Smith is hearing this motion alone. Neither Professor Neuberger nor Mr. Tidswell -- the other two members of the panel -- were available on short notice but this here required immediate attention.
— Florian Mueller (@FOSSpatents) July 17, 2023
🧵3/X
Mr Justice Smith wants to know why just about two weeks ago the CMA sought a postponement of the appellate hearing without reference to those ongoing negotiations.
— Florian Mueller (@FOSSpatents) July 17, 2023
🧵5/X
Mr Justice Smith clarifies that even if both parties request an appeal, the court can deny it.
— Florian Mueller (@FOSSpatents) July 17, 2023
He says he's sure that in private litigation, under such circumstances, the motion to stay would be denied as well.
🧵7/X
Mr Justice Smith has 4-stage process in process:
— Florian Mueller (@FOSSpatents) July 17, 2023
1. Tribunal must be satisfied with proper legal foundation of discussions between CMA and Microsoft. Not as matter of law that CMA is right, but wants to know that there is a proper jurisdictional basis for CMA's proposal.
🧵9/X
3. If the first 2 requirements are met, question is whether CMA is indeed seeking a stay for those reasons. Motion must be grounded in reality, cannot just be hypothetical. Thinking behind motion to stay must be explained.
— Florian Mueller (@FOSSpatents) July 17, 2023
🧵11/X