On Friday, Nokia obtained an additional anti-antisuit-injunction injunction ("AAII") against Continental AG, the German parent company of the automotive supplier group, but meanwhile it has become known that the prior AAII, entered in July against Michigan-based Continental Automotive Systems, Inc., was finally served under the Hague Convention "[o]n or about August 28," i.e., Wednesday. That's what Continental's U.S. attorneys tell Judge Lucy H. Koh in today's partial withdrawal of the U.S. antisuit injunction motion (this post continues below the document):
Continental's filing states that they are now opposing this injunction in Munich. Technically, this means the Munich I Regional Court would have to hold another hearing with respect to the U.S. entity, but given how the last hearing went, it would either take a surprising change of mind on the German court's part or a new and winning argument on Continental's part to get a different outcome. Then the matter will go up to the Munich Higher Regional Court, to which I assume Continental is already appealing--or about to appeal any moment--Friday's injunction against the German parent company. The appeals court may very well overrule the lower court, and Continental's notice makes clear that they may revive the withdrawn parts of the motion in the event the Munich AAII is lifted.
Nokia had asked the German court to obligate Continental to withdraw its motion within 24 hours of service, but the court instead granted the injunction only on the basis of requiring a withdrawal "without undue delay." Therefore, the fact that Continental needed a few days (not even counting the long Labor Day weekend in between) shouldn't matter.
But it's only a partial withdrawal. The notice clarifies that Continental's withdrawal relates only to ten specified Nokia v. Daimler cases pending in Dusseldorf, Mannheim, and Munich, and only with respect to three Nokia legal entities, but the Daimler supplier "is not withdrawing its motion for anti-suit injunction in any other respect, i.e., insofar as it seeks an order enjoining the other defendants in this proceeding, as well as Nokia, from pursuing or instituting against Continental or any of its customers (or their subsidiaries or affiliates) any other action alleging infringement of their global 2G, 3G and 4G SEPs during the pendency of the FRAND proceeding in this Court, or from acting in concert with anyone to pursue or institute such an action."
The part regarding other defendants than Nokia shouldn't be a problem. While Continental's U.S. lawyers are seeking an antisuit injunction that would even relate to potential German patent injunctions against Daimler cars that don't even contain a Continental telematics control unit (which I believe is overreaching), I guess Nokia won't take the position that its German AAII would apply to any non-Nokia entities. Those other entities are some privateers whom Nokia fed with patents (Conversant and Optis), and the Avanci patent pool firm, which doesn't hold or assert patents (only its pool contributors do).
However, I have re-read the German AAII, and Continental's narrow interpretation is not entirely indisputable. The German AAII does list those ten German Nokia v. Daimler patent infringement actions and bars Continental from seeking a U.S. antisuit injunction relating to those ten specific cases. The Munich court's AAII goes on to state that this also requires the withdrawal of the U.S. antisuit injunction (identified by case and document number) and that Continental is prohibited from pursuing the motion further other than filing a withdrawal notice.
In Nokia's original AAII motion, that part also contained the word "insofar," which could be reasonably interpreted as limiting the scope of the withdrawal order to those ten German Nokia v. Daimler lawsuits, but the Munich court omitted that one and just ordered the withdrawal of the motion as identified by case and document number.
The term "Anti-Suit Injunction" consistently appears in italics in the AAII, which can (though there is no definitive convention to this effect and the reason may simply be that it's an English term in the middle of German sentences) be understood as the term having the meaning ascribed to it by the order, which would mean the motion with respect two Nokia entities and ten specific lawsuits they brought.
It is, therefore, a question of interpretation whether the broader wording of the final part is logically narrowed by the fact that the prior parts of the order are limited to those ten German Nokia v. Daimler cases. One factor that weighs in favor of a narrower definition is that Nokia would have no standing whatsoever in Germany to seek an AAII with respect to non-Nokia defendants, so one might argue that the Munich court couldn't possibly have meant the final part in the broadest sense. However, that original AAII--unlike the second one--came down on an ex parte basis without Continental having had any chance to respond to Nokia's motion. They didn't even know about it until they learned of the decision. Therefore, the Munich court didn't have the benefit of any objections by Continental's lawyers to an overbroad wording, and might have gone too far as a result of an oversight.
The reasons stated in the original AAII come down to generally declaring any U.S. antisuit injunction against a German patent infringement proceeding unlawful by German standards. But the actual order lists ten specific German cases as opposed to referring explicitly to any German patent infringement cases. And, again, one might argue that the Munich court couldn't possibly have meant to enter an AAII with respect to a U.S. antisuit motion targeting, for an example, other jurisdictions than Germany.
If Continental had wanted to eliminate even the slightest risk of a contempt fine, they'd have withdrawn the motion with respect to those Nokia entities and not only those ten but any or all, pending or future, German patent infringement actions they brought or might bring. However, it appears they're willing to take a calculated risk. The first contempt fine wouldn't be draconian, and in the meantime they may be very confident they can get that AAII lifted by the appeals court (I, for my part, consider it more likely than not to happen, but it's too early to tell).
If Nokia brought a contempt motion, arguing that the withdrawal was insufficient, Continental might be fined, but then the court would have to clarify the scope, and Continental could comply on that basis to avoid any further fines.
While the AAII may be a bit broader than Continental appears to believe, there can be no doubt that at least with respect to other parties (than Nokia) and jurisdictions (than Germany) Continental can still pursue its U.S. antisuit motion. This means Judge Koh can make a decision on the key questions whenever she finds the time to do so--and if the process takes more time in the U.S., then the Munich AAII might be lifted in the interim.
In a hypothetical scenario in which Continental's withdrawal would be deemed to have just the right scope, but even the Munich appeals court would uphold the AAII, and further assuming that Judge Koh would grant the parts not withdrawn, that hypothetical U.S. antisuit injunction would be useful to Continental only in the event that Daimler could fend off all ten of the specified German Nokia v. Daimler cases or at least limit the impact of any Nokia wins so Daimler wouldn't have to bow to Nokia's demands. There has been a German court hearing so far with respect to only one of those ten cases, and Nokia is on the winning track in that one, but that was preliminary.
There's a high number of permutations here since
Nokia may or may not bring a contempt motion, but if Nokia does bring one, the lower court in Munich may or may not agree with Continental's interpretation of the scope of the AAII;
the Munich appeals court may or may not lift the AAII; and
Judge Koh may or may not grant the U.S. antisuit injunction as requested at the time she makes her decision, and even if she grants, she may very well narrow the scope.
Despite the existence of so many permutations, I'll make a guess. The most likely combination in my mind is that the Munich appeals court will lift the AAII, but that the U.S. antisuit injunction motion will, if not denied, be granted only after some very significant narrowing.
While all of that is speculative, there's one thing I'm sure of: Judge Koh is not going to accelerate anything just because of that German AAII. She's very busy and will organize the proceedings in her court the way she deems appropriate and efficient--which may mean to wait until the Munich appeals court has spoken, which should normally just be a matter of a few weeks, or at least not much more than a month. Whatever may happen, we won't see a torpedo contest or any other war games between those two courts, simply because it would be beneath the U.S. district court's dignity.
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