The Munich Local Division of the #UPC held, in an ex parte order of 11 December 2024 in a Huawei v Netgear dispute, that the UPC has jurisdiction in relation to an action for an anti-anti-suit injunction (#AASI). Read on for more about this from Wouter Pors
An anti-anti-suit injunction at the Unified Patent Court Article 32 UPCA lists the actions for which the UPC has jurisdiction. These include actions for patent infringement (under a) and for related provisional measures (under c). In Huawei v Netgear the Munich Local Division held in an ex parte order of 11 December 2024 that this includes an action for an anti-anti-suit injunction for the UPC jurisdiction. Huawei holds patents that are standard essential for the Wi-Fi 6 standard, which it sought to enforce through infringement actions at the UPC. Netgear filed an action for an anti-suit injunction against the UPC litigation in the District Court for the Central District of California. Huawei learned of this on 4 December and filed its action at the UPC on 9 December. The hearing in the US action was scheduled for 24 January 2025, but in order to prevent an even earlier US order if Netgear became aware of the UPC action, Huawei requested an ex parte injunction. The UPC assumes jurisdiction under Article 31 UPCA, as the US anti-suit-injunction would have effect in its territory. According to the judge an infringement of a patent under Article 32 UPCA also occurs if there is an encroachment on the property right of a patent by a prohibition on the enforcement of the patent, such as an anti-suit injunction. Article 47 and 17 of the Charter of Fundamental Rights of the European Union guarantee access to justice for the protection of IP rights and this would be the same under national law of the participating states, such as Germany. These rights would be frustrated by an anti-suit injunction and therefore an anti-anti-suit injunction should be awarded. The injunction as granted is not limited to a specific patent, but protects all infringement actions before the UPC. This is a very important decision. There has been quite some debate whether the wording of Article 32 UPCA would exclude jurisdiction for claims that are not directly aimed at stopping patent infringement. The UPC has now adopted an extensive interpretation of the concept of infringement under Article 32. The next question is whether this can also cover for instance facilitating patent infringements. It shows that the UPC Agreement allows for flexibility, making the UPC even more useful.