A much anticipated showdown in front of the UPC’s Court of Appeal took place in Luxembourg today in front of a panel of judges comprising Ulrike Voss (presiding judge), Peter Blok (judge rapporteur) and Emmanuel Gougé (legally qualified judge).
In its preliminary opinion, the Court of Appeal expressed concerns over the potential practical effects of interim licence declarations on access to and the effective enforcement of rights within the UPC. In particular, the panel invited submissions as to whether the implications of a SEP-holder being declared unwilling in the UK as a result of refusing to enter an interim licence would be a de facto anti-suit injunction because of the practical implications of not entering into the interim licence.
The appeal stems from the Mannheim Local Division’s grant of an ex parte anti-interim licence injunction (“AILI”) to InterDigital on 30 September 2025. This AILI was granted in light of proceedings for a RAND determination that had been brought by Amazon against InterDigital in the UK. Amazon’s application to dismiss the AILI was rejected by the Mannheim LD on 22 December 2025 and it is that decision that is the subject of the appeal.
Large parts of the morning’s session were not open to the public. However, upon resumption of the public proceedings, the panel provided a comprehensive preliminary opinion on three issues:
The competence of the UPC to issue an AILI;
The scope of the AILI that was granted; and
The merits of InterDigital’s application for an AILI.
Competence
Neither party addressed the court substantively on its preliminary finding that it had competence to issue the AILI under Article 32(1)(c) & (a) on the basis that infringement included the unlawful interference with a proprietor’s ability to enforce its patent rights.
Scope of the AILI
Following the grant of the AILI, there was some acknowledged difference in views between Mannheim and London as to whether the AILI extended so as to restrict the final relief that Amazon could seek in the UK proceedings. On the basis of the grounds and arguments made in support of InterDigital’s original AILI application and the wording of the AILI itself, the panel’s preliminary finding was that the original AILI had not been intended to cover Amazon’s final relief in the UK proceedings and had not been subsequently extended. The panel further emphasised that the final relief sought by Amazon was clear from its UK pleadings before the AILI was applied for and so, if InterDigital had wanted to include such relief in their application, they could and should have made it clear earlier.
InterDigital indicated it was restricted in the arguments it could make on the scope of the AILI due to an anti-suit injunction issued in the UK proceedings to protect the final rate-setting element of those proceedings. However, it purported to make submissions on the point on the basis of where it believed the Mannheim LD had been coming from in holding the AILI extended to final relief.
Merits of InterDigital’s AILI application
On the question of the merits of InterDigital’s AILI application, the panel indicated that its preliminary view was that the grant of interim licence declarations could be a problem in the UPC. They were particularly concerned that Amazon’s UK pleadings indicated that the purpose of any interim licence relief would be to prevent InterDigital seeking injunctions in other jurisdictions and therefore access to the UPC and the effective enforcement of rights in the UPC was restricted. The panel wondered whether, notwithstanding that interim licence declarations were not an express prohibition on carrying on foreign proceedings, they were a de facto restriction on access to the UPC and the effective enforcement of rights therein.
Submissions were made by both parties on the practical effects of an interim licence declaration on both UK proceedings and UPC proceedings (even discussing the unprecedented possibility of an order of specific performance for a licensor to enter into an interim licence).
The panel also considered a scenario in which InterDigital had entered into an interim licence. The panel acknowledged that in such a scenario, a licence defence would be available to Amazon to any UPC infringement action brought by InterDigital and so the claim would be “doomed to fail” from the start. Accordingly, the interim licence declaration could be said to have an indirect effect on InterDigital’s access to the UPC. In these circumstances, the UPC considered that it may not necessarily be bound to recognise the interim licence and raised the possibility that InterDigital could challenge the interim licence as null and void before the UPC. However, the panel acknowledged that there was no UPC case law on the issue and it could not accordingly direct InterDigital on the merits of such a challenge.
In making distinctions with an ASI, Amazon emphasised that the utility of an interim licence extended to the SEP-holder who would receive money earlier while rejecting InterDigital’s contention that this would lock the SEP-holder into a UK rate-setting claim (which seems particularly apposite given the UK Court of Appeal’s recent decision in Nokia v ASUS & Acer, where the UK rate setting was stayed because Nokia had made a FRAND offer which included arbitration). There was some disagreement between the parties (and presumably some frantic messages to UK colleagues) as to the impact a declaration of unwillingness would have on a licensor in terms of the costs of the UK proceedings and the interest available in such proceedings.
Judge Blok asked InterDigital some interesting questions about comity; in particular, whether an AILI that extended to final relief unduly interfered with the UK court’s process. More broadly, he queried whether “anti-” measures were needed at all if the courts are to be trusted to do the right thing. He emphasised that it was wrong to argue that the UK court was less capable than the UPC or that the UK was doing things so “far-reaching”, especially in light of the exercise by the UPC of BSH v Electrolux long arm jurisdiction over foreign patents.
The panel indicated that an order will be issued as soon as possible.
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