“I still haven’t found what I’m looking for.” U2’s iconic lyric might capture how patent holders feel when an anti-suit injunction (ASI) from a foreign court threatens to derail enforcement in Europe. Rather than yielding, European courts often respond with a swift countermeasure: the anti-anti-suit injunction (AASI). An AASI prevents litigants from seeking or enforcing an ASI that would muzzle local proceedings. This tactic is not new to France and Germany. Yet the Unified Patent Court (UPC) has now firmly joined the fray, championing Europe’s hostility towards ASIs in its recent decision Huawei v. Netgear.
A French Perspective
France vividly illustrates Europe’s refusal to tolerate ASIs. In IPCom v. Lenovo (Court of Appeal of Paris, Case No RG 19/21426, 3 March 2020), the judges granted an AASI against a US proceeding that aimed to block IPCom from enforcing its standard essential patents (SEPs). The Paris Court of Appeal declared that ASIs deprive patentees of fundamental property rights, violating Article 17(2) of the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR). This reasoning echoes German courts, where the Munich judiciary likewise regards ASIs as an illicit encroachment on patent owners’ property rights under §§823(1) and 1004(1) of the German Civil Code (BGB).
The UPC and the Anti-ASI Offensive
Against this backdrop, the UPC’s recent position is hardly a surprise. In Huawei v. Netgear (Munich Local Division, Order of 11 December 2024, File No. ACT_65376-2024 UPC_CFI_791-2024), the court granted an ex parte anti-anti-suit injunction to preempt Netgear from pursuing an ASI in the United States. Huawei argued that any US order hindering enforcement of its SEPs under the UPC’s purview would amount to a violation of its patent rights. The UPC agreed, referencing Article 32(1)(c) of the UPC Agreement in conjunction with the Brussels I bis Regulation (EU Regulation 1215/2012). The judge reasoned that blocking a patent holder from enforcing its rights is tantamount to infringement itself. Citing Articles 17(2) and 47 of the EU Charter of Fundamental Rights, the UPC underscored that intellectual property and effective judicial remedies enjoy strong constitutional protection in the EU.
This broad interpretation of the UPC’s jurisdiction has practical significance. Although Article 32 UPCA may look narrower than many national codes, the UPC has shown it can stretch to safeguard a patentee’s ability to litigate. The approach is consistent with both French and German jurisprudence and aligns with the Court of Justice of the EU’s emphasis on mutual trust among Member State courts.
The US Approach
In the United States, ASIs are extraordinary but not unheard of. Courts consider threshold factors, notably whether the parties are the same and whether resolution of the US action would be “dispositive” of the foreign case. They also weigh international comity, oppression, or vexatiousness of parallel proceedings. In Microsoft Corp v. Motorola, Inc, 696 F.3d 872 (9th Cir. 2012), the Ninth Circuit allowed an ASI to stop enforcement of a foreign injunction, illustrating that US courts remain open to such relief when they see a serious threat to the integrity of US proceedings.
China’s Emergence
China is also asserting itself on the ASI stage. In Huawei v. Conversant (PRC Supreme Court, Case Nos. 732, 733, 734, 28 August 2020) and Xiaomi v. InterDigital (Wuhan Intermediate People’s Court), Chinese tribunals issued sweeping ASIs that barred foreign courts from granting injunctions or determining FRAND rates for SEPs. Other jurisdictions—like India in InterDigital Technology Corp v. Xiaomi Corp (High Court of New Delhi, 9 October 2020)—countered with their own AASIs. Global SEP disputes thus risk turning into a multi-layered battle of injunctions.
The UPC’s Huawei v. Netgear decision cements Europe’s deep-rooted skepticism of ASIs and highlights a strong inclination to protect patentees’ rights. In so doing, the UPC aligns itself with French and German courts that regard patent rights as sacrosanct property, shielded under EU fundamental rights. Still, will this robust anti-ASI stance deter future challenges from courts abroad, or will it spur ever more inventive cross-border strategies? As global SEP litigation expands, the question remains whether the anti-anti-suit injunction can truly hold off the next wave of legal maneuvers.
________________________
To make sure you do not miss out on regular updates from the Kluwer Patent Blog, please subscribe here.
