I have three procedural updates relating to the Avanci v. Daimler/Continental v. Avanci automotive patent wars:
On Wednesday (October 2), the Munich I Regional Court held a hearing and, hours later, affirmed its original anti-antisuit-injunction injunction (AAII) against Michigan-based Continental Automotive Systems. That is no surprise; in fact, anything else would have been a huge surprise, given that the same court recently granted an additional AAII--after briefing and a hearing, unlike in the first case--against Continental AG, the German group parent. The case against the German entity involved an additional hurdle for Nokia to overcome (complicit or intermediary liability), so given that Nokia prevailed even on that one, it was to be expected that the court wasn't going to lift its original AAII.
The second AAII was appealed to the Munich Higher Regional Court, which has scheduled the appellate hearing for Halloween. Considering that the first AAII involves only a subset of the issues in the other case, and knowing the appeals court's efficiency-oriented case management, it appears fairly probable that both AAIIs will be addressed on Halloween.
I believe reversal is about three times as likely as affirmance. The appeals court will probably be far more receptive than the lower court to certain fundamental concerns. However, Nokia may hope that even the appeals court has a strong desire to prevent U.S. antisuit injunctions from interfering with German cases. In this case, the appeals court might even adopt a test similar to the one used in the U.S. for antisuit injunctions. If the appeals court doesn't rule out AAIIs categorically, then the chronology of events favors Nokia in this particular case (its German infringement cases were filed way earlier than Continental's U.S. FRAND complaint, and the fact that Nokia didn't immediately seek injunctive relief--but did provide a Huawei v. ZTE FRAND analysis that is relevant only when a SEP holder moves for an injunction--doesn't have a bearing on when the case per se was filed; also Continental's U.S. antisuit motion relates to any pursuit of infringement litigation against Continental customer Daimler in Germany, regardless of remedies sought).
Continental may refile its U.S. antisuit motion. It had withdrawn it in part further to the Munich AAIIs. What played a role in Judge Lucy H. Koh's decision to deny the motion without prejudice was confusion about whether Continental meant to enjoin Sharp, another contributor to the Avanci patent pool. While Sharp also sued Daimler a while ago (the first complaint was filed in mid-April), Continental brought its amended complaint adding Sharp only in late July--and Sharp argued in the defendants' joint motion to dismiss that Sharp's Japanese group parent hadn't been properly served.
Yesterday Continental's lawyers filed two declarations of service on Sharp Japan, which constitute another set of attempts to serve Sharp Japan through U.S. entities (as opposed to cross-border service of process under the Hague Convention). In one of those cases, Sharp's lawyers served a Sharp entity in New Jersey, and in the other case, they served on a Sharp Electronic Corporation office in Los Angeles. We'll see whether Sharp is now satisfied or still complaints about improper service. The motion-to-dismiss hearing will be held on November 21 (though Judge Koh might just take the matter under advisement, as she frequently does in such situations).
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