Ericsson chases AASI against Apple in the Netherlands

In a dispute between Ericsson and Apple, the District Court of The Hague has ruled that Ericsson is not entitled to an undertaking of an anti-anti-suit injunction against Apple. However, the story is not over. Presiding judge Edger Brinkman, who ruled on the interim PI proceedings, will determine a final decision in the main preliminary injunction proceedings on 18 November 2021.

Ericsson chases an AASI

On 4 October 2021, the Dutch court granted an ex-parte AASI against Apple for five days. This was to protect any potential legal proceedings Ericsson initiated against Apple in the Netherlands. Then an inter-parte oral hearing followed on 8 October 2021, in which Apple rebutted the previously-granted ASI.

Here, the preliminary relief judge decided not to maintain the provisional AASI measure until the main proceedings later in November. During the oral hearing, Apple stated that it had never before requested an ASI and has no intention of doing so in the current dispute. As such, presiding judge Brinkman lifted the AASI, judging there to be no threat by Apple against Ericsson to justify an AASI for the remainder of the preliminary relief proceedings.

An oral hearing in main proceedings will take place in the middle of November, meaning a chance remains that the judge could indeed grant Ericsson’s requested AASI. While Germany was previously in the limelight for its ASI activity, eyes are now on the Dutch courts in case of future moves by Apple.

Currently litigation between the parties is ongoing in the US. JUVE Patent is unaware of parallel proceedings in other European countries.

A developing story

ASIs and AASIs are starting to become par for the course in European patent proceedings. The latest decision by the District Court of The Hague, despite not going in Ericsson’s favour, does not rule out the future possibility of the court granting an AASI. However, the way in which different European courts approach the legislation can differ, even within the same country.

For example, usually in German ASI proceedings, a continuous or imminent risk of infringement must precede the injunction claims. This includes the need for the defendant to provide a concrete indication of imminent or planned infringement.

Wim Maas

But, in a recent case between HEVC Advance members and Xiaomi, the Regional Court Düsseldorf upheld a first-instance decision. This was granted without the suing parties presenting such evidence.

Such a pre-emptive AASI granting was new ground for the Düsseldorf court, although the German judiciary is becoming more vocal in such matters.

Regardless, an AASI without an ASI remains rare. Although Düsseldorf was the main forum for the entire HEVC vs. Xiaomi proceedings, some observers considered it an unusual forum to bring ASI and AASI suits, because Munich is the usual go-to court for such cases.

Depending on the outcome in November, the court in The Hague could be next in-line for this accolade.

At the Dutch court

Taylor Wessing has a close relationship with Ericsson in the Netherlands. For example, the firm also worked with the telecommunications giants in the now-settled litigation against Samsung.

However, Hoyng ROKH Monegier’s appearance for Apple in these proceedings comes as somewhat of a surprise. In the Netherlands, usually the US mobile communication company relies on Hogan Lovells or Freshfields Bruckhaus Deringer for its litigation. On the other hand, Hoyng’s German team has appeared for Apple before in its dispute with Qualcomm, led by partner Klaus Haft.

Theo Blomme

In the Netherlands, Theo Blomme and Peter van Schijndel lead the case for Apple.

For Ericsson
Taylor Wessing (Eindhoven): Wim Maas (partner, lead); associates: Eelco Bergsma (counsel), Nicky Willemsen, David Mulder (Amsterdam)

For Apple
Hoyng ROKH Monegier (Amsterdam): Theo Blomme, Peter van Schijndel (partners); associates: Akiva Friedmann, Nathalie Rodriguez Arigon

District Court of The Hague, the Netherlands
Edger Brinkman (presiding judge)

Update 20.12.2021: The District Court of The Hague confirmed its interim PI judgement on the 16 December. Previously, on 18 November, the court heard the parties’ opinions in an oral hearing. The judges dismissed Ericsson’s claim to render a pre-emptive AASI against the iPhone manufacturer, after Apple had expressed it will not grant an ASI against Ericsson anywhere. Ericsson can now appeal the verdict within four weeks after publication.

In general, the judge pointed out that the court is competent to hear such a case and is authorised to grant a cross-border, pre-emptive AASI. Contrary to German courts, however, the Dutch judges do not see ASIs as per se unlawful if a party requests to prevent the other side from breaching a covenant not to sue.

In the last few weeks, pre-emptive AASIs are seemingly increasingly popular. Sources told JUVE Patent that they became a standard move in FRAND disputes – especially at the Munich Regional Court against Chinese companies. The UK High Court ordered also a pre-emptive AASI in the FRAND dispute Philips against Xiaomi.