Last week, the England & Wales High Court granted Amazon an anti-anti-suit injunction (AASI) against InterDigital (IDG), following InterDigital being awarded an anti-interim-licence injunction (AILI) in both the UPC and Munich I Regional Court that prohibited Amazon from seeking an interim licence declaration in the UK.
It is clear from these events, and indeed acknowledged in the judgment of Meade J himself, that there is a difference in opinion between the UK courts and UPC on whether interim licence declarations in standard essential patent (SEP) / Fair, Reasonable, and Non-Discriminatory (F)RAND cases have appropriate regard to comity, or if they unduly restrict the freedom of patentees in other (i.e. non-UK) jurisdictions.
However, the AASI order issued by the High Court, and the accompanying judgment, seem to me to be aimed at preserving the court’s ability to determine the ‘core’ issue of RAND licence terms (the proceedings concern digital streaming SEPs declared essential to ITU-T standards whose Intellectual Property Rights (IPR) policy requires SEPs to be licensed on RAND terms rather than ETSI’s FRAND terms) without unduly impacting the UPC and Munich I Regional Court’s ability to conduct their own proceedings, and take issue more with IDG’s conduct before the UPC and German courts than the decisions of those courts.
In that sense I do not think the AASI is as much of an incendiary escalation as may have been feared when the order first became public. This is for several reasons:
- The AASI issued by the High Court explicitly excludes from its scope interim licences. As such, IDG will not be in breach of the AASI by enforcing the AILI against Amazon issued by the UPC and Munich I Regional Court. They would be in breach of the AASI if they sought to expand the scope of the AILI in some way to cover the final determination of RAND terms by the High Court, however.
- It is clear from the judgment (reiterated several times) that the High Court does not want to interfere in matters before the German and UPC courts. The judge did not take issue with the UPC and German courts issuing an AILI per se (saying they were entitled to do so and acknowledging that the English courts sometimes use ASIs so cannot object to another court sometimes issuing an ASI restraining continuance of English proceedings), but expressed concern with the evidence and arguments IDG gave to the UPC and German courts to obtain their AILI.
- With regards point 2, IDG had said there was urgency needed to obtain the AILI because the UK court is expected to schedule a hearing on Amazon’s application for an interim licence declaration “very soon” and would announce its decision “immediately after this hearing”. Meade J said that such a situation is “wildly unlikely almost to the point of inconceivable”, having regard to the various other interim licence applications the court has dealt with recently and the time needed to resolve those owing to their complexity.
- The AASI order is time-limited, running only until a further hearing to be heard this week (28-30 October 2025), when the court will consider whether the order should continue.
In addition to the further hearing this week, Amazon has sought a review of the UPC’s AILI (which was made ex parte) and will do the same for the Munich I Regional Court’s injunction. We’re therefore not yet at the end of this issue, with further developments possible that will provide a clearer picture as to the extent the UPC (and German national courts) can be used to nullify interim licence declarations of the UK court.
For further information or to discuss any of the matters in this article in more detail, please do not hesitate to get in touch.
