In patent an infringement matter in Germany, the holder of a German part of a European patent had asserted her patent rights against an alleged domestic infringer in front of the Munich I District Court.
The supplier of the alleged infringer subsequently applied for an injunction in the USA prohibiting the patentee from bringing an action against the alleged infringer in Germany. The reason given for this motion was that the patent patentee allegedly infringed his FRAND obligations by filing the patent infringement suit. The US court observed the defendant’s/patentee’s right to be heard and forwarded the suppliers motion to him.
Such so-called “anti-suit injunctions” (i.e. orders issued by one court to stop proceedings in front of another court) are common practice in the USA and the United Kingdom and in many cases they are able to thwart already pending court proceedings in other countries.
In the proceedings in question, however, the patentee went on to counterattack and applied to the Munich I District Court for an interim injunction against the supplier to prohibit him from requesting such an anti-suit injection and to withdraw this action in the US.
The Munich I District Court complied with the patentee’s request by issuing a ruling and repeated this ruling in further proceedings against the supplier’s parent company.
The District Court stated that the request for such an anti-suit injection would impair the patent holder’s right to bring an action of law. According to a decision of the Düsseldorf Higher Regional Court of 1996, the rule of law principle (Rechtsstaatsprinzip) and the right to obtain effective justice (Rechtsgewährungsanspruch) prohibit such an anti-suit injunction. Such action would also affect the sovereign rights of the Federal Republic of Germany. The jurisdiction of the Federal Republic of Germany was impaired if a foreign court gave instructions to the parties to proceedings in Germany as to how they should behave or engage in such conduct and which claims they were entitled to submit.
It is also an interference in the sovereign rights of Germany that certain proceedings may not be brought before German courts or must be withdrawn. On the contrary, the national courts must decide independently whether they are competent to hear and decide the individual case.
The irony of that preliminary injunction by the München I District Court is that a court prohibits one party from requesting a foreign court to continue proceedings which are intended to prevent the first court from continuing and deciding its own case (“anti-anti-suit-injunction”). The reason lies in the fact that a foreign court is not allowed to interfere in the proceedings of the ordering court. The presumed contradiction is that the ordering court does exactly what it forbids the other court to do. This shows that such violent anti-suit injunctions are a venom that can apparently only be countered with an identical antidote.
The judicial restraint in extraterritorial decisions and the consideration of the sovereignty rights of other states, which is normally common practice in continental Europe, is justified. Where, however, one’s own constitutional principles are affected by foreign courts, the legal system must find a way (except through diplomatic channels) to defend itself and enforce its own constitution.
The German courts will presumably be approached more often in this way in the future in order to enforce the constitutional claim to the granting of justice against intrusive legal systems.
