Mark Wilden acts successfully for ValueLicensing against Microsoft before the Court of Appeal

8th July 2026

3PB’s specialist intellectual property barrister Mark WildenMark WildenCall: 2018 acted again for, in this case the successful respondent, JJH Enterprises (trading as ValueLicensing), in two appeals brought by Microsoft against decisions of the Competition Appeal Tribunal (CAT) for which judgment was handed down yesterday.

ValueLicensing claims that Microsoft stifled the supply of second-hand computer programs and software licences by placing restrictions in the relevant contracts and moving customers from the use of perpetual licences onto a subscription-based model. Microsoft contended that ValueLicensing had no right to resell second-hand computer programs because the relevant copyright in the computer programs had not been exhausted.

Microsoft challenged the jurisdiction of the CAT to determine issues that in substance comprise non-competition law causes of action, such as copyright issues that arise in the context of a competition law claim.  In May 2025 the CAT ruled that it did have jurisdiction to hear copyright disputes in that context ([2025] CAT 33).

​At a trial of preliminary issues Microsoft argued that Microsoft's Windows and Office fall outside the EU’s copyright exhaustion rules for computer programs, which allow the resale of perpetual software licenses, because of the inclusion of literary and artistic works including fonts and clip art.  Microsoft also argued that a purchaser of multiple user rights originally sold under its Enterprise Program was not entitled to sub-divide and resell those user rights in smaller quantities than originally purchased by the first acquirer.

In November 2025 the CAT found for Mark's client ValueLicensing on all substantive issues ([2025] CAT 75).  The CAT ruled that exhaustion under Article 4(2) of the Software Directive is not limited by contractual terms in Microsoft's Enterprise Agreements, and that the distribution and reproduction rights enjoyed by Microsoft does not prevent the subdivision and resale of licences obtained by the first acquirer. The Tribunal also ruled that the first online sale of Windows and Office exhausts the distribution and/or reproduction right under Article 4(2) of the Software Directive to the extent those works are distributed, downloaded and copied in accordance with the intended purpose for which Microsoft Windows and Microsoft Office were first sold.

Microsoft appealed both rulings.  The Court of Appeal heard Microsoft’s two appeals in April 2026.  In a judgment of the Chancellor of the High Court (with which Green and Phillips LJJ agreed), handed down yesterday as [2026] EWCA Civ 872, the Court of Appeal dismissed both appeals.

The case has been widely reported in the media, including Law360, MSN News and The Register.  You can read the full judgment here.

Mark was instructed by specialist disputes law firm Ghaffari Fussell LLP, was led by Matthew Lavy KC of 4 Pump Court on jurisdiction and by Michael Hicks of Hogarth Chambers on preliminary copyright issues, and appeared with Henry Edwards of 8 New Square.

To contact or instruct Mark, please email Chambers Director David Fielder on [email protected] or telephone him on 020 7583 8055.