Justus Kapischke has published an article titled Interim Licences and Anti-Interim-Licence Injunctions: Semi-strict non-interference or rules for the race?, 5/2026 GRUR 275. Here is the abstract:
This article analyses and provides background information on two recent decisions of the LG Munich I and the LD Mannheim. In both decisions, the courts react negatively to the English practice of awarding interim licence declarations in FRAND disputes, enjoining implementers from applying for such relief. The LD Mannheim further offers its opinion on the limits of final FRAND determinations in England.
The decisions at issue are, of course, Judgment of Nov. 26, 2025, LG Munich I, 21 O 12112/25, and InterDigital VC Holdings, Inc. v. Amazon.com, Inc., UPC_CFI_936/2025 (LD Mannheim Dec. 22, 2025), both of which entered anti-interim license injunctions (AILIs) directed against Amazon. (Both decisions are also excerpted in this same issue of GRUR, at pp. 313-30. The appeal from the Mannheim LD decision will be heard on May 28.) The author ably illustrates the incompatibility of the English approach to FRAND disputes (under which the court’s task, ultimately, is to set a rate) and the German/UPC approaches (which to date have focused on conduct), writing that “[a] foreign court making injunctions unavailable by ordering the SEP holder to grant a licence interferes with the incentive structure of injunction focused approaches,” whereas “conduct-based injunctions may force settlement before any court had the chance to establish FRAND terms either by determining them or by confirming the FRANDness of the SEP-holder’s offer, frustrating a rate-setting approach” (p.177). He questions some of the analysis of the above two decisions, noting that they both seem premised on the coercive effect of an English declaration concerning interim licenses (effectively equating them to antisuit injunctions), even though “it is clear that interim licences do not force an SEP-holder to accept rate-setting proceedings in the implementer’s preferred forum” (p.179). True, the SEP holder’s refusal to comply with the declaration could result in its being deemed an unwilling licensor, but the author states that the SEP holder’s seeking an AILI is “unlikely to change anything about that” (p.180). (In addition, it would seem to me, the odds that the SEP holder would obtain an injunction in the U.K. are pretty negligible anyway, aren’t they?) In addition, he notes both courts’ emphasis on the territorial nature of patents, which however in a strictly jurisdictional sense “appears not to be the current law in Germany or the EU as exemplified by the ECJ’s judgment in BSH” (p.182). I’m glad to see someone making this connection, which seems quite important to me. The author argues, however, that strict territoriality is not the Mannheim LD’s position, but rather only what he refers to as “semi-strict” territoriality in the sense that “courts can, on behalf of SEP holders, impose their view of global FRAND licences on implementers by way of injunctions,” but implementers “may not use similarly coercive measures as means of imposing global FRAND determinations on SEP holders, since this would interfere with foreign infringement proceedings” (p.182). I’m not entirely sure of the author’s view here, but I’m not convinced of the merits of this distinction. (I plan to explore the question more deeply in a forthcoming essay I will contributing to the Research Handbook on Extraterritoriality and Intellectual Property, which I mentioned here the other day. Consistent with the author’s observation that “both sides can at least plausibly accuse each other of having taken the first ASI-like measure” (id.), it has long seemed to me that when courts start issuing ASIs, AASIs, AILIs, declarations concerning interim licenses, and so on, it is awfully difficult to say which jurisdiction is the one violating the comity norm.) The author closes by suggesting that it would be helpful “to obtain authoritative constructions of the relevant (F)RAND undertakings from the French of Swiss courts,” and also if SEP holders “offer[ ] to refrain from seeking injunctive relief if the implementer agrees to be bound by a rate-setting procedure in Germany or at the UPC” (id.). Might the German courts and/or UPC ever head in this direction?
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