In global patent litigation, anti-suit injunctions can undermine a patent holder's litigation strategy and delay quick UPC judgments. But there's an effective way to fight back: anti-anti-suit injunctions. How can you use them at the UPC to protect your case?
Patent litigation before the Unified Patent Court offers patentees the possibility of obtaining an injunction covering 18 Member States of the European Union, including the large national markets of Germany, France, Italy, and the Netherlands. Early statistics on the average duration of cases before the UPC suggest that an injunction can typically be expected around 13 months after the filing of the infringement action
In global patent disputes, especially those involving standard essential patents, potential infringers often try to delay the swift European procedure and seek anti-suit injunctions in foreign courts, particularly in the US and in China. The purpose of such an anti-suit injunction is to prevent the patent holder from enforcing its patent by way of a European infringement action. If a patent holder ignores such an injunction and commences or continues a European infringement action, significant fines have to be paid; for example in China, fines can exceed 100,000 EUR per day.
To avoid this scenario, national European courts, for example in Germany, issue anti-anti-suit injunctions. These prevent the potential infringer from undermining the German infringement proceedings by seeking foreign anti-suit injunctions. Since the start of the UPC, however, there was one question: Would the UPC see itself competent for anti-anti-suit injunctions and adopt this approach?
This question has recently been answered by the UPC's Court of First Instance. The Local Division Munich granted anti-anti-suit injunctions in several SEP cases, confirming the UPC's jurisdiction in this area. The Court saw an infringement of the patent by seeking a foreign anti-suit injunction. According to the grounds, patent infringement is not only the unlawful use of the protected invention, but also the interference with the patent owner's right to an effective trial. This right is guaranteed by the EU Charter of Fundamental Rights. Aside of its monopoly powers, the patent includes the right to an effective trial, which, therefore, must be protected by the UPC.
In addition, the anti-anti-suit injunctions were issued ex-parte and within a couple of days. This sends the message that the UPC is willing to defend its jurisdiction and its swift infringement proceedings against interference by foreign anti-suit injunctions. Such measurement underlines how powerful a UPC infringement action can be in global patent litigation.
Notably, it appears that anti-anti-suit injunctions in the UPC are not limited to SEP cases. In another order, the Munich Local Division has indicated that it is willing to grant an anti-anti-suit injunction in a biotech case.
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