Just a quick follow-up to yesterday's report on the appellate hearing in Munich on Nokia's anti-antisuit injunctions against Continental:
The Munich I Higher Regional Court's press office told me today that a ruling has been scheduled for December 12.
I still predict the same outcome: reversal. The court's position on the irreconcilability of an antisuit--including anti-antisuit--injunction with German law didn't appear to change at any moment during the hearing that lasted well over two hours. What I attribute the delay to is simply that this appeals court--at least when it comes to patent cases--tends to write very comprehensive opinions. Those judges won't necessarily address each and every argument they don't have to reach. But unlike their U.S. counterparts, they do cover a lot of ground beyond the shortest path to a particular outcome when fundamental questions are at stake. Earlier this year, an injunction Qualcomm had won and enforced against Apple in Germany was tossed on three independent grounds, any single one of which would have been self-sufficient.
The practical effect of this target date is that Continental can't make a third attempt at a U.S. antisuit injunction for another four weeks. Meanwhile, on December 10, the first Nokia v. Daimler trial will be held in Mannheim (there have been first hearings in three Munich cases, but the second hearings there are the actual trials and the soonest one of them will take place in February). In all those years I've seen only one bench ruling in Mannheim, so realistically, there won't be any German patent injunction in place against Daimler before sometime in January. Meanwhile, a renewed motion for an antisuit injunction in the U.S. could be resolved if a motion to shorten time succeeded--which it might if a Mannheim injunction loomed large after the December 10 trial, especially since the issues have been briefed before, even if not by Sharp and Conversant.
The Mannheim Regional Court is more likely than the one in Munich to be receptive to the argument that Nokia shouldn't be granted injunctive relief against an end-product maker (Daimler) only because of a refusal to extend an exhaustive license to upstream companies in the supply chain. I'm cautiously optimistic it may work out that way (or Nokia's Mannheim case might also fail on the merits and be rejected or stayed). In that case, a U.S. antisuit injunction won't even be needed before the first final Nokia v. Daimler judgment is entered in Munich.
Nokia may lose everything in the end. Huawei is probably going to win its private antitrust lawsuit against Nokia in Dusseldorf. The European Commission might launch formal investigations anytime. And if Nokia can't gain decisive leverage over Daimler in the short term, it will probably end up paying tens of millions of euros under Germany's "loser pays" rule as there's an army of intervening companies on Daimler's side and Nokia has to pick up the bill for all those legal entities if it loses. Statistically, most of those types of complaints don't go anywhere, so Nokia needs a lucky punch, but it faces some hurdles. I was less optimistic about Daimler and its suppliers' ability to fend off Nokia's patent assertions, but Huawei's Dusseldorf action is a game changer: even if Nokia could force Daimler to take a license (be it from Nokia or from the Avanci pool as a whole), Huawei's lawsuit would continue unabatedly.
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