Context: On Friday (November 14, 2025), the Unified Patent Court’s (UPC) Mannheim Local Division (LD) held a preliminary injunction (PI) hearing to review, at Amazon’s request, an ex parte (granted without notice to the affected party) PI that InterDigital won in order to defend against foreign usurpation the integrity of UPC infringement proceedings that have meanwhile started in earnest (November 10, 2025 ip fray article). We have reported on the presiding judge having indicated rather clearly that the UPC is disinclined to recognize license agreements foisted upon patent holders by foreign courts (November 14, 2025 ip fray article). We will also provide a structured overview of the arguments exchanged and views expressed in our upcoming weekly UPC Roundup.
What’s new: Between yesterday’s article and the upcoming UPC Roundup, this article will now report and comment on an unfortunate situation that will hopefully be defused very soon. There are two serious issues for the ordre public with potential ramifications under criminal law:
- The most problematic one is that the antisuit injunction the High Court of Justice for England & Wales (EWHC) granted to Amazon last month contains a passage that, as the Mannheim LD’s Presiding Judge Professor Peter Tochtermann explained yesterday, could be interpreted as threatening even UPC and other (German, Brazilian etc.) judges with imprisonment if they were to make certain decisions in InterDigital’s favor.
- The second one would normally also be deemed extremely serious, though it is eclipsed by the threat of imprisonment against UPC and other judges. The EWHC has made statements that suggest restrictions on InterDigital’s ability to make certain arguments in the UPC or other courts. Not only does such conduct go against the ordre public, but it is punishable under § 240 (Coercion) of the German Criminal Code. Coercion is prosecuted ex officio, meaning that the affected persons would not have to indict a UK judge who engages in such behavior. Anyone could report the matter, and that could trigger prosecution.
Direct impact:
- Deescalation is needed and most likely. The court’s concerns over both issues are clearly serious, but it is now up to the EWHC to rectify.
- Should there be further escalation, then it could, in a worst-case scenario, become advisable for continental European judges involved with certain cases to avoid travel to the UK or to countries closely aligned with the UK. But in that scenario UK judges involved with certain cases should also think twice before traveling to the EU.
Wider ramifications: Earlier this year, British jurisdictional imperialism threatened to interfere with proceedings by a U.S. government agency, the United States International Trade Commission (USITC or ITC). We warned against the adverse effects of certain England & Wales Court of Appeal (EWCA) decisions on the UK’s relations with the United States and other countries (February 2, 2025 ip fray article). In the abstract, those concerns were validated eight months later by a senior Trump Administration official (October 10, 2025 ip fray article).
1. Is there a threat to UPC, German, Brazilian etc. judges?
The relevant passage of the October 20, 2025 EWHC decision says this:
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS ANY OF (1) INTERDIGITAL VC HOLDINGS, INC. (2) INTERDIGITAL, INC. (3) INTERDIGITAL MADISON PATENT HOLDINGS SAS (4) INTERDIGITAL PATENT HOLDINGS, INC. OR (5) INTERDIGITAL CE PATENT HOLDINGS SAS TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND PUNISHED BY A FINE, IMPRISONMENT, CONFISCATION OF ASSETS OR OTHER PUNISHMENT UNDER THE LAW
(emphasis in original)
Here’s a version that is easier to read:
Any other person who knows of this order and does anything which helps or permits any of (1) InterDigital VC Holdings, Inc. (2) InterDigital, Inc. (3) InterDigital Madison Patent Holdings SAS (4) InterDigital Patent Holdings, Inc. or (5) InterDigital CE Patent Holdings SAS to breach the terms of this order may also be held to be in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.
Presiding Judge Tochtermann looked and was sounding very uncomfortable when he referenced that passage. He said that he and his colleagues even ask themselves whether “[a]ny other person” includes them as well, depending on what they may decide in the further continuation of this dispute.
It would indeed have been better for the order to contain an explicit carve-out for those acting in certain capacities.
Obviously, there is no way that the authorities of EU member states would allow the enforcement of that order against judges. They may, in fact, not allow enforcement against anyone. But let’s assume a UPC judge involved with an InterDigital v. Amazon decision travels to the UK for a conference, such as at a British university. In that case, there would be a theoretical risk.
2. UK judges must stop trying to bar parties like InterDigital from making certain arguments in foreign courts — or they might be arrested when traveling in the EU
Presiding Judge Tochtermann appeared no less concerned about the fact that InterDigital had indicated prior to the hearing that it was restricted by the UK court in what arguments it could raise in the UPC.
He asked InterDigital to speak freely, without potential UK backlash in mind. But he presumably knew that InterDigital was not going to argue as if the UK threat did not exist.
It goes witout saying that it raises serious ordre public concerns when a party in a continental European court thinks it cannot say everything it normally would say, only because of pressure exerted by a foreign court.
It’s not just about the ordre public. UK judges who do this should inform themselves of what this type of behavior constitues under continental European criminal law. In this case, the hearing was held in Mannheim, Germany, so German criminal law would apply.
Forcing people to do, or to refrain from doing by threatening them with a hardship or with violence is illegal under § 240 Criminal Code. That crime is prosecuted ex officio, rendering a request for proseuction by the victim unnecessary.
If a foreign court pressures a litigant not to (instruct its counsel to) make certain arguments in a court based in Germany, § 240 would apply. And while there are strong arguments for which § 343 (Extortion of Testimony) would not apply directly (it is related to different types of proceedings and widely considered by scholar to be applicable only to German judges and other officials), some analogies might be drawn and underscore the seriousness of the offense.
InterDigital appeared afraid to say more than one thing it would have liked to argue. While this question was not on the agenda, Presiding Judge Tochtermann was concerned about a party like InterDigital being barred from arguing in the UPC that a coerced license agreement should not be recognized as a defense to patent infringement.
The UK court’s fear of parties speaking out freely is understandable. No UK court has jurisdiction over continental European patents or the continental European parts of European bundle patents. It also doesn’t have jurisdiction over claims under French or Swiss contract law. It would not be hard to dissuade a continental European court from recognizing coerced licenses (which would, by the way, also apply to license agreements resulting from someone being coerced to commit to binding arbitration on terms set by a UK court; the detour via arbitration would not solve any problem). And if InterDigital had been free to act and speak yesterday, it might have argued that Amazon’s pursuit of a UK antisuit injunction constituted a contravention of the UPC’s anti-interim-license injunction (AILI). As the court noted yesterday, the question of whether the UPC can order contempt sanctions sua sponte has yet to be clarified. But by accusing Amazon of a violation of the UPC order, which was not limited to an interim license, InterDigital could have triggered contempt proceedings, which in turn would then have been considered a breach of the UK order.
None of the two problems outlined in this article may have been intended by the EWHC. But that doesn’t make the issues any less serious. It would be best if Amazon withdrew its UK case.
It must be possible that a party like InterDigital can say at a UPC hearing whatever it wants, and that judges can travel between the UK and continental Europe without having to ask themselves whether there is a risk to their freedom.
Tomorrow’s UPC Roundup will summarize the public part of yesterday’s injunction hearing.