Continental may not continue to appeal to US courts to have Nokia prohibit the enforcement of patent judgments in Germany. This is the result after Munich Higher Regional Court rejected an appeal by Continental. At the hearing three weeks ago, the court still had doubts about the first instance decision in favour of Nokia.
12 December 2019 by Konstanze Richter
Following the anti-anti-suit injunction ruling, the Higher Regional Court has given Nokia the green light to continue its patent dispute. This is against Daimler and its suppliers in Germany (case ID: 6 U 5042/19).
Among them is Continental. The auto supplier had hoped to protect itself and automobile manufacturer Daimler from infringement suits in Germany, through an anti-suit injunction from the US District Court for the Northern District of California this summer.
But the Munich Regional Court granted an anti-anti-suit injunction against Continental. According to the judges, an anti-suit injunction issued by a US court in Germany violates current case law (case ID: 21 O 9333/19).
In two preliminary injunctions, the Munich judges in the first instance banned Continental AG and its US subsidiary Continental Automotive Systems from applying for measures prohibiting Nokia from pursuing its German patent infringement proceedings.
As a result, Continental withdrew its anti-suit injunction in the US in early September. However, Continental reserved the option to use the anti-suit injunction in the US if the Munich ruling did not stand.
At the same time, the company appealed the injunction issued by the Munich court.
Initially, it seemed unlikely that the Higher Regional Court Munich would uphold the first-instance decision in this form. In the oral hearing at the end of November, presiding judge Konrad Retzer saw contradictions in the argument of the lower court.
According to Retzer, an anti-anti-suit injunction is just as illegal as the anti-suit injunction itself. A party cannot be prohibited from conducting a lawsuit, according to German law. Neither can another party be prohibited from filing an application such as the one for the anti-suit injunction in the US. With its preliminary injunction, however, the judge said that the first instance court had done exactly that.
Nevertheless, the court has now confirmed the first-instance decision. The reasons for the decision have not yet been given. Continental can no longer challenge the Higher Regional Court’s ruling under German law.
However, according to JUVE Patent’s information, the company can ask Nokia to clarify the disputes in a main trial before the same courts. Whether this would lead to a different judgment is questionable. This is because the oral hearings in the preliminary injunction case were already unusually intensive on both sides.
Today is become known that, at Nokia’s request, the US District Court for the Northern District of California had transferred the US FRAND case between Avanci, Nokia and others against Continental to the Northern District of Texas. The proceedings in California would, in Nokia’s view, have facilitated an anti-suit injunction from the US against infringement proceedings pending in Germany between Nokia and Daimler.
Both cases are part of the connected cars patent dispute. Here, various Avanci patent pool licensors are suing Daimler and automotive suppliers over 3G and 4G patents.
In April, Nokia filed ten patent lawsuits at the regional courts of Düsseldorf, Mannheim and Munich. The Finnish company accuses Daimler of infringing its SEPs, and is demanding damages and the rendering of accounts. Nokia has filed four lawsuits with the Regional Court Mannheim.
The Regional Court Düsseldorf and the Regional Court Munich will each hear three complaints.
At the same time, Japanese electronics company Sharp has sued Daimler several times in the Regional Courts in Mannheim and Munich over connected cars patents. Sharp accuses Daimler of infringing five SEPs. According to earlier press reports, NPE Conversant has also claimed against Daimler in Germany. (Co-author: Matheiu Klos)
Arnold Ruess: (Düsseldorf): Cordula Schumacher (lead), Arno Riße; associates: Stefania Parise, Tim Smentkowski
In-house (Munich): Clemens Heusch (IPR litigation)
Freshfields Bruckhaus Deringer: (Düsseldorf): Frank-Erich Hufnagel; principal associate: Eva-Maria Herring; associate: Corin Gittinger
Higher Regional Court Munich, 6th Senate
Konrad Retzer (presiding judge), Stefanie Ruhwinkel, Robert Lehner