Sunday, October 11, 2020

In the increasingly insane world of patent litigation, antisuit injunctions are of no more value unless accompanied by anti-anti-antisuit injunctions--ex parte, of course

This is a follow-up to the Tuesday post entitled The day that international comity died was when the UK Supreme Court handed down its injudicious Unwired Planet ruling. It's not just that international comity in patent litigation is history: so is sanity--and in this case it's not about sanity in a literal sense (Experts call plexiglass shields used by Munich I Regional Court "absurd" and useless to protect against COVID-19, even if they were several times larger), but--figuratively speaking--in the antisuit context. And once again, UK and German judges are to blame because they've brought about a situation in which other jurisdictions will have to take ever more extreme measures.

Also on Tuesday, Professor Thomas Cotter mentioned on his much recommended Comparative Patent Remedies blog a Chinese court's antisuit injunction against InterDigital in connection with its standard-essential patent (SEP) litigation against Xiaomi in India, and the fact that InterDigital had asked the Delhi High Court for an anti-antisuit injunction. And he asked: "Ah, where will it all end?"

If sanity isn't restored in the near term, we may have to use a more mathematical notation like "Anti1suit/Anti2suit/Anti3suit/... Injunction" or "A1SI/A2SI/A3SI" lest we end up writing about anti-anti-anti-anti-anti-anti-antisuit injunctions.

Indian lawyer Rajiv Kr. Choudhary reported on his Tech Law Blog on Saturday that the Delhi High Court had indeed granted InterDigital's motion for an anti-antisuit injunction (PDF), just like the Munich I Regional Court had granted one to Nokia against Continental last year (surprisingly affirmed by the Munich Higher Regional Court).

Unless the Chinese court that had enjoined InterDigitroll in the first place can hold them in contempt of court because of their petition for an A2SI running counter to the spirit of the A1SI, Xiaomi might now move for an A3SI, as Continental did (unsuccessfully, however) in Northern California.

What this escalation means in practice is that every party considering a motion for an antisuit injunction--at least in a patent (especially SEP) litigation context--may now conclude that a conventional A1S1 doesn't do the job. It did 8 years ago for Microsoft against Motorola, and in 2018 for Samsung against Huawei, but the world has undoubtedly changed after the escalation in certain other cases.

The more promising course of action now is to

  • move not only for an A1SI but to request a concomitant and broad A3SI, and

  • to do so ex parte (even requesting that the court hide it from the other party until the decision comes down).

But even that won't necessarily help as the other party may find a court that is willing to grant an A2SI as a pre-emptive strike. In that case, a plaintiff fearing an A1SI might have to bring an ex parte motion for an A2SI along with the complaint.

In some situations, the sequence and nature of the injunction requests may not even matter as much as how much the enforcement of one decision hurts the other party. If you obtain an A1SI in a jurisdiction that will impose draconian sanctions on the other party, while the A2SI was granted in a jurisdiction that will impose only a small fine on you, then you might just feel like pulling the trigger and enforce your A1SI in contempt of the A2SI--but that's unlikely to be a good strategy, given that you would then totally offend the court hearing the case, and the patentee presumably sued you in that particular jurisdiction because you have substantial business interests there.

The 1975 Oscar Best Movie One Flew Over the Cuckoo's Nest took place in a mental hospital. Fast forward by 45 years and it's become a patent court--possibly even the premium version with plexiglass shields.

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