Thursday, December 12, 2019

Nokia's winning streak continues: Munich Higher Regional Court surprisingly affirms anti-antisuit injunction

A few hours after Judge Lucy H. Koh of the United States District Court for the Northern District of California granted Avanci, Nokia et al.'s motion to transfer Continental's U.S. FRAND/antitrust lawsuit to the Northern District of Texas, the Oberlandesgericht M√ľnchen (Munich Higher Regional Court) surprisingly affirmed the Munich I Regional Court's Nokia v. Continental anti-antisuit injunction. At the hearing held four weeks ago, the court actually indicated an inclination to reverse.

The reasons for the decision are unknown. Maybe Nokia's modified wording of the injunction played a role.

After the U.S. venue transfer decision, it would have been difficult at any rate to obtain in the very short term a U.S. antisuit injunction against the Nokia v. Daimler (as well as Sharp v. Daimler and Conversant v. Daimler) patent infringement cases pending in Germany. But it might still have happened just in time before Nokia will secure its first German SEP injunction. Now, with the German anti-antisuit injunction in place, a new U.S. antisuit motion would have to have a narrower scope.

All appeals have been exhausted as far as the preliminary injunction is concerned. Conti could insist on clarification of the same matter in a regular proceeding, which would take a while, but then a further appeal would be possible (either if permitted by the court of second instance, or by bringing the equivalent of a U.S. cert petition). The question of whether German courts can order anti-antisuit injunctions--while arguing that antisuit injunctions are unavailable under German law--requires clarification at the highest level.

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