Amazon.Com, Inc & Ors v InterDigital VC Holdings, Inc & Ors

An English court may grant interim anti-anti-suit relief where it is seriously arguable that foreign proceedings would undermine the English court’s jurisdiction or would be vexatious or oppressive. The jurisdiction is flexible, but must be exercised with exceptional caution because of comity. An interim order may preserve the position until an inter partes hearing, even where the English court’s jurisdiction is itself challenged. Ex parte relief is appropriate only in unusual circumstances where there is a real risk of urgent countermeasures and the order can be confined so that it causes no material interference with foreign proceedings.

Following an earlier judgment concerning anti-suit injunctions obtained in Germany and before the Unified Patent Court, Amazon applied ex parte for anti-anti-suit relief against InterDigital. Amazon feared that InterDigital would seek foreign relief restraining the pursuit of final RAND licence relief in the English proceedings. InterDigital was not represented.

The application concerned whether interim relief should be granted to protect the English court’s jurisdiction, to restrain allegedly vexatious or oppressive conduct, and to preserve the position pending a return hearing. The court also considered whether proceeding without notice would be compatible with comity.

1. Interim relief granted. The court granted an anti-anti-suit order for a short period until a return hearing. The order restrained InterDigital from seeking to restrain or penalise Amazon’s pursuit of final RAND relief and related applications in the English proceedings.
2. The principles governing anti-suit relief apply flexibly to anti-anti-suit relief. Relief may be granted where necessary to protect the jurisdiction or process of the English court, or where foreign proceedings are, or would be, vexatious or oppressive. The categories are not closed. The overriding question is whether the interests of justice require relief, subject to careful consideration of comity and the English court’s sufficient interest in the dispute. These principles, summarised in J.P. Morgan v Werealize.com, were applicable.
3. It was seriously arguable that the English proceedings concerned the scope, price and terms of a final RAND licence, contractual entitlement to such a licence and specific performance. Foreign relief restraining those proceedings could undermine the English court’s jurisdiction, particularly since no alternative forum had been identified as available or more appropriate.
4. Interim anti-suit relief could be granted pending determination of the English court’s jurisdictional challenge. Magomedov v PJSC Transneft established that power. The court also considered that the changing and tactical nature of InterDigital’s position made it seriously arguable that any foreign application would be vexatious or oppressive.
5. Proceeding ex parte was justified by the unusual circumstances, including the real risk that notice would prompt urgent foreign applications. Comity was not infringed because the order was directed to InterDigital, was short-lived, and was not intended to interfere with any imminent procedural step in the German or UPC proceedings. InterDigital could apply to vary or set aside the order.
6. The order did not prevent substantive patent infringement proceedings or enforcement of resulting judgments. A broad notice-only order was rejected as unnecessary and liable to create uncertainty.