UK judge rebukes InterDigital lawyer for telling UPC, Munich court that interim license ruling could come down soon, AAASI even ex parte

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Reference to ip fray

23. I became aware of the UPC and German orders (I think it is fair that I say this), as I suspect many other litigators and members of the judiciary across Europe did, from a blog on the internet last week, on 2 October, the day the orders were served . . .

Original document

Here’s the approved judgment, followed by further commentary:

FRAND or RAND?

Mr Justice Meade deliberately uses the term RAND, not FRAND, because it is the one chosen by the relevant standard-setting organization, the International Telecommunication Union (ITU), and differs from the European Telecommunications Standards Institute’s (ETSI) FRAND pledge in the sense that Amazon argues it is entitled to specific performance in the form of a court-mandated license agreement.

We continue to refer to the concept as FRAND for the following reasons:

• No court has ever applied them differently with respect to royalty rates. The F is redundant (regardless of academic musings), but makes for a nicer sound.
• Whether there is, actually or potentially, an entitlement to a license depends on anything but the F. The Institute of Electrical and Electronics Engineers (IEEE) also uses RAND, not FRAND, but Amazon did not make similar claims regarding WiFi.
• EU and for now (unti there is divergence) UK courts apply Huawei v. ZTE, which refers to FRAND.

While we’re on the subject of acronyms, the order uses “ASIL”, which apparently stands for “anti-suited interim license” (meaning the interim license Amazon originally sought, but can no longer seek due to the AILIs).

Jurisdictional issue: ITU pledge is subject to Swiss law

Para. 56 of the order reveals that InterDigital’s counsel has raised a jurisdictional issue:

Amazon’s claim relates to a Swiss law contract [the ITU licensing pledge] that has been entered into by two US companies, and there is insufficient connection with the UK and to render the courts of England and Wales the appropriate or most convenient forum.

The governing law of the contract in question, which is French law for ETSI standards, has not previously mattered to jurisdiction-grabbing English courts. It probably won’t result in a dismissal in this case either, but this is potentially distinguishable because of Amazon’s pursuit of specific performance on contract law grounds.

InterDigital would even be prepared to waive the enforcement of its UK IP (UK parts of European patents) against Amazon for the purpose of avoiding those unnecessarily costly UK FRAND proceedings. But that approach didn’t help Huawei against MediaTek (a dispute thas has meanwhile settled as a result of Brazilian border seizures), nor did one of Mr Justice Meade’s peers care that ZTE was willing to extend an interim license to Samsung, the only disagreement being the venue in which to set FRAND rates (June 27, 2025 ip fray article).

The English courts might, however, ask themselves whether their disregard for governing-law choices and some patent holders’ willingness to waive UK enforcement can be reconciled with whatever concerns British judges may have over AILIs and other foreign measures to combat their extraterritorial overreach.

How soon is “soon”? And when is ex parte warranted?

Mr Justice Meade faults Dr. Michael Bloch KC (Wikipedia article) for three things:

1. He supported InterDigital’s UPC and German AILI motions by saying, in a sworn declaration, that a UK interim-license ruling could come down “soon.” That was necessary to convince the non-UK courts of an urgent need for intervention.
2. He supported the request for ex parte (i.e., without notifying the other party) injunctions through a declaration that there was a risk of Amazon reacting to AILI motions with a request for an anti-anti-antisuit injunction (AAASI) in the UK.
3. And he did the above while arguing in the UK that those proceedings were not urgent (which is what defendants say almost all of the time).

For the above reasons, plus in light of the fact that Amazon cannot currently pursue an interim license, Mr Justice Meade wanted to look into the overall situation as it affects the proceedings in his court, partly in terms of how those proceedings are represented vis-à-vis foreign courts.

In para. 44 he says:

[I]t is entirely a matter for foreign courts whether to make anti-suit orders. But I think it is fair for the UK court at least to look and see whether its procedure is reasonably accurately described, not least because I expect that it may be useful to continental courts in deciding what to do. Of course, they have no obligation to consider the UK view.

Amazon may have appealed, or otherwise could still appeal, the AILIs. At least in the Munich I Regional Court and possibly also in the UPC (where there is no precedent for a direct appeal), the next step would be a panel hearing, which typically has the same result as the ex parte proceedings but after which there could be an appeal. The presiding judge from Munich is now transitioning to the UPC (October 10, 2025 ip fray article), but when the first-ever German AASI was heard by a panel during the summer vacation season in 2019, the presiding judge who signed the ex parte decision wasn’t available either (and Judge Dr. Hubertus Schacht, who has been designated to the appeals court as we mentioned at the end of the article linked to above, then filled in for him to preside over the hearing).

The UK order notes that with two different courts having entered AILIs, Amazon could solve that problem only through two successful appeals. And (which the order does not say) even that may not be enough as courts in other fora, such as in Brazil, could make similar decisions to protect their jurisdiction).

The courts who entered the AILIs and their appeals courts are unlikely to be persuaded that InterDigital misrepresented the UK situation when seeking the AILIs and wouldn’t have obtained the AILIs otherwise:

• It is legitimate for a defendant to advocate a slower schedule while being afraid of a potential precipitation of events due to imponderabilities.
• In any event, an interim license would almost certainly come down before any main proceedings in Germany (of whatever kind) could conclude.
• If InterDigital elected (as it may already have, but we don’t know if that is the case) to bring infringement cases in the UPC and/or Germany, it could theoretically lose them because a license serves as a full defense to infringement. Therefore, InterDigital needed legal certainty now, as it would otherwise see itself restricted in the exercise of its intellectual property rights.
• While Mr Justice Meade suggests that InterDigital overstates the risk of a UK AAASI on an ex parte basis, that will presumably not make a difference in the UPC or in Germany because the order does not say that it would be impossible under UK law to happen. Moreover, InterDigital might provide the UPC and the German courts with a transcript of last year’s Panasonic-Xiaomi UK appellate hearing. The judges of the England and Wales Court of appeal (EWCA) actually indicated to Xiaomi that an ASI would be the conventional instrument in that situation, and at some point there was a suggestion that any attempts by Panasonic to shirk its obligations under UK law could have further consequences.
• The same applies to the hypothetical possibility of a UK court making a bench ruling. A low likelihood does not mean that an ex parte decision is not warranted to eliminate certain risks.

Is Mr Justice Meade’s portrayal of the situation more realistic? Yes. Was InterDigital’s version nevertheless justifiable as a conservative take on what could happen? Yes.

Do the AILIs prevent Amazon from seeking specific performance to the effect of a permanent (not interim) license?

Mr Justice Meade says in his order that he interpreted InterDigital’s counsel as initially saying that the AILIs barred Amazon from seeking a court-imposed license not only in the form of an interim license but even after a full trial. According to the order, InterDigital’s lawyer retracted that position.

That question is relevant with a view to whether there is any point in expediting the UK FRAND proceedings (or even holding a FRAND trial at all), though the English courts have recently viewed pretty much any SEP case inherently and indiscriminately to meet the “useful purpose” requirement.

Regardless of whether InterDigital avoided an open conflict with the English courts over this question, we do not see that Amazon can still gain significant mileage (if any) from the UK proceedings in order to obtain a license on its preferred terms:

1. German injunctions, including preliminary injunctions, bar not only literal contravention but also “violations sharing the same core” (“kerngleicher Verstoß”). The purpose of the AILIs is to protect the part of InterDigital’s IP that is enforceable in the UPC or, respectively, Germany agianst foreign interference. If a UK court. even more incredibly in a case where two U.S. companies have a dispute over Swiss law, was going to require InterDigital to extend a global license on certain terms, that would be a coercive license. It would be even worse than an interim license because it would be permanent.
2. Even if the AILIs in their current form did not apply, InterDigital could go back to those courts, and/or run to courts in other jurisdictions, and limit the effect of the UK FRAND case. There is no reason why a coerced license resulting from a full trial would any less of an interference with the patentee’s rights than an interim license. If anything, the contrary would be the case.
3. As we outlined earlier this year (February 4, 2025 ip fray article), the nuclear option would be for non-UK courts to treat as an unwilling licensee any company availing itself of UK jurisdictional overreach, and to consider a coercive global license a fundamental threat to the patentee’s rights. On that basis, the hurdle for a preliminary injunction against infringement could be rather low. In the specific case of InterDigital and Amazon, it would not even be necessary to order ex parte injunctions just because of a FRAND trial coming up in May. There would be time for some pleadings, but Amazon could be enjoined before the earliest point in time at which there might be a UK forcible-license judgment.

All in all, Amazon’s UK position appears to be a strategically lost one. The question is probablxy not if, but when and how the point will be reached at which Amazon gives up. However, this is an unprecedented situation as Mr Justice Meade also noted.

Unrelated case, but another disagreement between Mr Justice Meade and the Munich I Regional Court: Bayer & Regeneron v. Formycon

Mr Justice Meade’s relationship with continental European courts is “respectful, but interesting.”

For example, Mr Justice Meade also disagrees with the Munich I Regional Court (without explicitly stressing that divergence) on whether a Formycon product infringes a Regeneron patent under the Doctrine of Equivalents (DOE) (October 9, 2025 ip fray article). In that case, however, the divergent outcomes could be attributable to different DOE standards rather than judicial philosophy.

In another pharma case, Alexion v. Amgen & Samsung Bioepis, Mr Justice Meade gladly took note of his view of a certain patent being consistent with those of the UPC’s Court of Appeal (CoA) (May 21, 2025 ip fray article).

Last year, he sent a letter to the UPC and two German national courts to advise them of his upcoming FRAND determination in Panasonic v. OPPO & Xiaomi (July 31, 2024 ip fray article). There was no indication of the continental courts being prepared to wait for his FRAND judgment, and the cases settled a few months later, not least because of the interim license that Xiaomi had obtained from Panasonic with help from the EWCA.

Counsel

UK case management conference

Amazon: Andrew Lykardiopoulous KC, instructed by Hogan Lovells.
InterDigital: Dr. Michael Bloch KC and Jennifer Dixon, instructed by Bird & Bird.

UPC and Germany

UPC Mannheim LD (case no. UPC_CFI_936/2025): Presiding Judge (and there, judge-rapporteur) Prof. Peter Tochtermann, Judge Dirk Boettcher (“Böttcher” in German) and Judge András Kupecz (a Dutch national primarily assigned to the Munich seat of the Central Division).

Munich I Regional Court (case no. 21 O 12112/25): Presiding Judge Dr. Georg Werner (now transitioning to the UPC), Judge Dr. Sebastian Benz and Judge Tözsér. In an April 2025 court document, Judge Dr. Benz is listed as Presiding Judge Dr. Werner’s deputy, and Judge Tözsér as the deputy of Presiding Judge Dr. Schoen of the 7th Division.

Arnold Ruess’s Cordula Schumacher, Dr. Arno Risse (“Riße” in German; he masterminded the 2019 AASI against Continental), Dr. Lisa Rieth, Anja Penners und Julija Kravtsova. On the UPC and German InterDigital v. Amazon cases, they are working together with df-mp patent attorney Dr. Dominik Ho.