Amazon.com, Inc & Ors v Interdigital VC Holdings, Inc & Ors

An interim anti-anti-suit injunction may be continued where there is a strong likelihood that, without it, a party will seek foreign relief preventing substantive rights from being determined by the English court. The required likelihood is qualitative and must be assessed with the gravity of the threatened harm, the interests of justice and comity.

Comity does not prevent protection of the English court’s jurisdiction where the order restrains only the litigant, preserves the foreign court’s ability to determine the effect of an English judgment, and does not prevent infringement, rate-setting or other substantive proceedings abroad. Foreign judges and court staff cannot be placed in contempt of an English injunction.

Amazon brought RAND proceedings concerning InterDigital’s video-streaming patent portfolio and sought final licence terms and specific performance. InterDigital had obtained anti-suit orders from the German court and the Unified Patent Court directed principally to interim licence relief.

Amazon obtained an interim anti-anti-suit injunction in England. InterDigital applied to set it aside or vary it, arguing that there was no sufficient threat or intention to seek further foreign relief, that continuation would offend comity, and that the order was unclear.

The court had to decide afresh whether the injunction remained justified, what its scope was, and whether clarification or modification was required.

1. Disposition. The court continued the anti-anti-suit injunction in modified form. The modifications were principally clarificatory and were to be agreed with counsel and approved by the court.
2. Threat and likelihood. Quia timet relief cannot rest solely on an applicant’s assertion of fear. The court must assess the respondent’s threat, intention and likelihood of seeking the foreign relief. The expression “strong probability” does not impose an inflexible more-likely-than-not standard. It requires heightened qualitative attention, particularly where anti-anti-suit relief engages comity. The assessment remains part of the broader inquiry into what the interests of justice require.
3. The previous foreign anti-suit applications, their ex parte nature, InterDigital’s earlier position that they prevented final RAND relief, its subsequent reversal, its filings before the UPC, and its failure to provide evidence of its intentions supported the inference that there was a strong likelihood of further foreign anti-suit relief if the injunction were removed.
4. Scope and comity. The injunction protected the English court’s jurisdiction to determine final RAND relief. It did not prevent InterDigital from bringing or continuing patent infringement proceedings, bringing overlapping rate-setting proceedings, challenging the effect or enforceability of an English court-determined licence abroad, or arguing that such a licence did not provide a defence. Those matters remained for the foreign courts. The order therefore did not improperly determine the territorial effect of any English judgment.
5. The possibility of parallel global RAND proceedings did not make one court superior to another. Lis pendens, case-management stays, voluntary declination of jurisdiction and res judicata remained available mechanisms for dealing with overlap.
6. An anti-suit injunction is directed to the opposing litigant, not the foreign court. Foreign judges and court staff could not be subject to contempt or otherwise bound by the English injunction. InterDigital’s advisers were likewise not gagged from making submissions to the foreign court.
7. The court emphasised the desirability of international de-escalation and forum-neutral interim relief, but those observations did not alter the conclusion on the injunction.