Thursday, April 27, 2023

Recent German Articles on ASIs and AASIs

Horst Vissel and Christian Kau have published an article titled Rumble in the Jungle – Ein Weg aus dem (Anti)n-Suit-Injunction Dickicht? (“Rumble in the Jungle:  A Way out of the (Anti)n-Suit-Injunction Thicket?”), 7/2023 GRUR 451-57.  Here is the abstract, in my translation from the German:


Heavyweights sizing each other up at a “Rumble in the Jungle” have been known to land the occasional low blow.  That’s why you need a neutral arbiter to ensure a fair proceeding.  This goes not only for sporting events, but also for global commercial competition in the telecommunications industry.  Just as in boxing different associations lay claim to the right to choose the world champion, parties and courts from various countries dispute who has jurisdiction in conflicts concerning standard-essential patents.  In this regard, the availability and the conditions for granting antisuit injunctions and their opposite anti-antisuit injunctions most recently have obtained greater significance, not least in the decisions of the Munich and Düsseldorf courts.  This has revealed a certain helplessness of the parties, if the courts in certain jurisdictions avail themselves of the power to enable rules concerning their own jurisdiction, which have a direct effect on judicial proceedings being prosecuted in other countries.  Criminal law offers a possible means for taking due regard for the sovereignty of states and for conferring greater importance to domestic access to justice.

If I understand correctly, the authors argue that in cases in which a foreign litigant obtains an ASI prohibiting a patent owner from proceeding with litigation or enforcing a judgment in Germany, the German state could take over the infringement litigation by bringing criminal proceedings against the alleged infringer.  (There is also some discussion of whether the UPC will be able to grant AASIs, see pp. 452-54, a topic on which I do not yet have any special insight.  For another perspective on this topic, see  Florian Mueller’s recent post titled Unified Patent Court presumably can't order anti-antisuit injunctions, but can national courts bar defendants from seeking antisuit injunctions against UPC enforcement?.)

Also of relevance to this topic is an article by Judge Sabine Klepsch titled Setting the Scene—Anti- and Anti-Anti-Suit-Injunctions in der Praxis der deutschen Patentstreitgerichte (“Setting the Scene:  Anti- and Anti-Antisuit Injunctions in the Practice of the German Patent Courts”), 6/2023 GRUR 382-84, which I noted on this blog last month (see here).

No comments:

Post a Comment