‘Two of the key differences of opinion, and I am summarising and simplifying greatly, are whether and to what extent (F)RAND obligations are purely a matter of competition law, and, secondly, whether the interim licence declarations which the UK court has now made following Court of Appeal decisions in a number of cases starting with Panasonic v Xiaomi[2024] EWCA Civ 1143 , unduly hinder the freedom of patentees in other countries' courts (Arnold LJ in Panasonic sought to make clear at [94]-[97] why he regarded the declarations as appropriate having regard to comity, and that other courts are free to enforce patents entirely as they see fit, but, as the UPC anti-suit decision in this case in particular makes clear, they do not agree). These are genuinely-held differences between the different courts, which will no doubt be explored and perhaps bridged by discussion, by further decisions, possibly by appeals to higher courts in all of the jurisdictions, or by references to the CJEU, and by various other means.’
‘48. Of particular relevance in the present case is that, pursuant to Article 20 EPCU, the UPC must give priority to the enforcement of European law. This is only possible if the proceedings concerning a standard-essential patent are conducted in compliance with the EU antitrust law applicable in the present case within the meaning of Articles 101 and 102 TFEU and any questions requiring clarification can be referred to the ECJ pursuant to Article 267 TFEU. These questions also include the question of whether the enforcement of prohibition rights under SEP is in conformity with EU antitrust law. This addresses a central area of regulation of patent law applicable to the EU internal market. One of the questions to be decided is whether, in negotiations for a FRAND license and in calculating its amount and the factors to be applied for this purpose, which are used in a comparison with third-party licenses in order to establish comparability, the SEP proprietor applies criteria that comply with antitrust law. Conversely, the Declaration may result in the SEP proprietor being de facto forced to accept an offer (at least for the time being) that is at the lower end of the FRAND corridor or, depending on the amount of the implementer's offer, even outside it. This question must also be answered in the context of EU antitrust law. If an EU court, in this case the UPC, were prevented from conducting this review, this could result in courts not bound by EU law making determinations on (F)RAND licenses that cannot be legally upheld in the European single market and may even be contrary to public policy. This is particularly to be feared in the present case because the granting of an interim license is not preceded by an examination of whether the competing offers are FRAND-compliant or not. If, therefore, the appropriate interim license rate is simply set at the midpoint between the competing offers, this may result in the determination falling outside the corridor of EU law. It is true that the actual FRAND compliance can be determined subsequently. However, the UK courts do not aim to do this, but consider it desirable for the parties to reach a settlement under the pressure of the interim license. In this case, the amount specified in the interim license may become a reference point in further negotiations that is contrary to EU antitrust law. Incidentally, it also seems doubtful whether this approach will encourage the parties to negotiate more rationally in the future. Rather, it could lead to the exact opposite, with both parties making even more difficult-to-bridge maximum demands in order to have the most favorable starting point possible for further negotiations when overcoming their differences.’
‘Finally, when weighing up the interests involved, it had to be taken into account that the present order is exclusively defensive in nature and is intended to shield the proceedings before the UPC. Neither are the respondents themselves prohibited from pursuing their patent rights in foreign forums, nor is the jurisdiction of foreign courts interfered with. The UK courts are therefore free to decide in the proceedings pending before them how the FRAND rate is to be calculated and what consequences it has in the national territory if a party fails to comply with the court orders. Should this lead to parallel determination of FRAND licenses in different jurisdictions, this must be accepted as a decision of the litigating parties. However, there is no room for economic considerations by the court in the best interests of the parties without mutual consent.’
‘The categories of factors which indicate vexation or oppression are not closed, but they include the institution of proceedings which are bound to fail, or bringing proceedings which interfere with or undermine the control of the English court of its own process, or proceedings which could and should have formed part of an English action brought earlier’
‘(5) An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention.’
‘Where the ‘anti-anti-suit’ injunction is sought in proceedings brought in England for the protection of those proceedings from interference by a foreign court, the application is for a provisional measure enabling the English court to go on hearing and determining the underlying claim. The purpose of the injunction is to protect and defend the integrity of the administration of justice by the English court in the proceedings pending before it.’
‘I should say that I have also considered and reflected on the requirements of comity. The relief I propose to grant does not restrict, even indirectly via the defendants, the courts of the PRC from conducting global rate-setting if the defendants initiate proceedings and if the courts of the PRC consider it appropriate. The relief I have granted simply defends the English court's proceedings in relation to infringement of a national patent, as was explained in the Unwired Planet decision of the Supreme Court to be the nature of these SEP/FRAND cases.’
‘23. [Foxton J’s judgment in J.P. Morgan v Werealize.com] recognises that categories of cases where anti -suit (or anti-anti-suit) relief might be appropriate are those where it is necessary to protect the jurisdiction of the English court, and those where the pursuit of foreign proceedings is vexatious or oppressive (or would be if commenced – I accept that quia timet relief is possible, and that is what is sought), but also says that the jurisdiction is not confined and must be flexible. 24. I have also found useful and important Magomedov v PJSC Transneft[2024] 4 WLR 284 , the decision of Bright J, which held that the court had the power to grant an interim AASI to last until the English court is able to decide its own jurisdiction. The relevance of that is that jurisdiction is substantively challenged by InterDigital in these proceedings. I am not able to reach a conclusion on that challenge and nor will I (or whichever judge hears this matter) be able to do so on any return date, if that were ahead of the jurisdiction challenge. But Magomedov decides there is power to grant interim anti-suit relief until jurisdiction is decided.’
‘There are still fewer cases involving AEIs and ARIs. Such learning as there is suggests that an AEI or ARI will, in general, only be granted in conjunction with an ASI or AASI; or at any rate, only where the court would in principle be willing to grant an ASI or AASI. In this context, there is even greater reason for caution: Dicey, Morris & Collins, The Conflict of Laws, 16th ed (2022), paras 12-126, 12-139; Masri v Consolidated Contractors International (UK) Ltd (No 3)[2008] EWCA Civ 625 ;[2009] QB 503 , para 94, per Lawrence Collins LJ; SAS Institute Inc v World Programming Ltd[2020] EWCA Civ 599 .’
‘It seems to me that the principle to be derived from these authorities is that, while it is not necessary for the court to have a ‘high degree of assurance’ in every case, the Court will generally wish to consider the merits of the applicant's case as part of assessing where the balance of convenience lies. Given that the underlying principle is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out at trial to have been ‘wrong’, the greater the degree of assurance which the Court has in the applicant's case then the less the risk of injustice will be if a mandatory order is granted. Thus a high degree of assurance will often be a relevant factor in favour of the grant of a mandatory injunction. Equally, it will generally only be in cases where withholding the injunction would carry a significantly greater risk of injustice than granting it that the Court will proceed without the relevant high degree of assurance.’
‘Anti-suit injunctions may be granted on a quia timet basis even before the targeted proceedings have commenced, if there is a sufficient threat that they will be commenced; and that if so, they will be of a nature which will justify the injunction. In one case, a mere reservation of rights to bring proceedings was held not to be sufficient to justify a quia timet injunction.’
‘There is no fixed or ‘absolute’ standard for measuring the degree of apprehension of a wrong which must be shown in order to justify quia timet relief. The graver the likely consequences and the risk of wrongdoing, the more the court will be reluctant to consider the application as ‘premature’
‘I also considered whether I ought to make an order which simply required InterDigital to give notice of any further anti-suit relief that it was going to seek in any other court, similar to what I did in Cook v Boston, as both a practical and symbolic effort to minimise even a theoretical impact on the proceedings of a foreign court. However, in view of the extremely short period to the return date, and the other matters I have referred to, and to the complexity which I think would be involved in this case in making an order requiring notice rather than simply an injunction, I do not think it is appropriate. I have already made clear why I think there is no lack of comity in what I am doing and I think the further challenge presented by converting the order sought to an order requiring notice is not merited and that to do so would just cause a potential lack of clarity and provide scope for unhelpful and unuseful argument.’