Friday, August 2, 2019

Anti- Antisuit Injunctions

First of all, is the correct term "anti- antisuit injunction," or "anti- antisuit injunction injunction"?  The latter seems more accurate, but it's a mouthful.  Anyway, as I noted the other day, both FOSS Patents (here and here) and JUVE Patent (here) have reported on the Munich Regional Court's issuance of an anti- antisuit injunction, directing Continental Automotive Systems, Inc. to refrain from continuing with its application for an antisuit injunction in a FRAND case pending before Judge Lucy Koh in California.  The Munich court states, in relevant part, that an antisuit injunction "would interfere with Applicants' protected legal interests," and would unlawfully deprive them of their right of action in Germany (paras. II.2.a(aa) and (bb)). (Curiously, the judgment literally states that the antisuit injunction sought in the U.S. would deprive "Respondents" (Antragsgegnerinnen) of their right of action in Germany, but surely the court meant to say "Applicants" (Antragsstellerinnen).  It gets confusing, since Continental is the Respondent, and two Nokia entities the Applicants, in Germany, but their positions are reversed in the U.S. proceeding; and elsewhere in the German judgment it appears that the court refers to the Nokia entities as Applicants and Continental as Respondent (singular, not plural), so I think that was what was intended in II.2.a(bb), and that the court just made an error.)

I don't have much to add, at this point, to the detailed discussions I cited and linked to above, other than to note that these sorts of complications present one reason why it might be desirable to have a single, global forum that could decide FRAND cases, as Jorge Contreras has argued here.  (Arbitration, of course, is one such forum, albeit a voluntary one.)  On the other hand, there may be reasons not to go this route, as Eli Greenbaum argues here.  (Professor Contreras and I are planning to work on a paper discussing these issues, among others, based in part on some of his previous work and on the presentations I gave earlier this year in Japan and will be giving next week at the Intellectual Property Scholars Conference in Chicago--though we've temporarily put the paper on hold, pending the U.K. Supreme Court's resolution of the appeals in Unwired Planet and Conversant.)  In addition, although this may be new to Germany, there are some examples of courts in other countries granting anti-antisuit injunctions.  Thomas Raphael discusses anti-antisuit injunctions under English law at pages 149-51 of his book The Anti-Suit Injunction (Oxford Univ. Press 2008) (which I previously mentioned here), where he notes that "the inherent risks of escalating conflicts between legal systems . . . should probably mean[ ] that anti-anti-suit injunctions should be granted with particular caution."  (He also states that "[a]nti-anti-anti-suit injunctions are still rarer."  Can anyone say "infinite regress"?)  Mark Cohen also has written on the China IPR Blog that a Chinese court issued an anti-antisuit injunction in a maritime dispute in 2017.  So, these things do exist . . . . Where will matters come to rest?

Update (8/5/2019): Further analysis by here, and on Law360 here.

*                    *                    *

In other FRAND news, according to write-ups on the EPLAW Blog and the Kluwer Patent Blog, the Court of Appeal in the Hague has held that Philips is entitled to an injunction against WIKO, on the ground that the latter was an unwilling licensee.  Copy of the decision (in Dutch) here.  The Law360 article noted above also mentions this case, as well as another Dutch case involving Philips and Asus, and the recent U.K. matter involving TQ Delta and ZyXELUpdate:  More about the Philips cases on JUVE Patent here.

No comments:

Post a Comment