On 23 May 2024, Mrs Justice Bacon gave judgment in an application for an interim injunction in Lenovo v Ericsson ([2024] EWHC 1267 (Ch)) in the latest in a long line of cases that grapple with the complications of multi-jurisdictional SEP disputes. In this case there are continuing proceedings between the parties in the UK, United States, Brazil and Colombia.
Lenovo applied for an interim injunction against Ericsson for its UK patent in suit, despite there being no precedent for such an order in UK FRAND proceedings for which damages are ordinarily considered an adequate remedy. Lenovo argued that this case was different as the interim injunction that it sought included a proviso that the injunction would not apply if Ericsson instead accepted one of three alternatives:
- To enter into a global cross-licence agreement on such FRAND terms as a court of competent jurisdiction shall determine, and not to seek or enforce any injunctive relief pending the determination of that, on the terms that Lenovo has offered Ericsson in the English FRAND proceedings currently pending in relation to another Lenovo patent under claim number HP-2023-000036 (the first English FRAND claim); or
- To enter into an interim cross-licence pending the determination of any global cross-licence, on the terms that Lenovo has offered Ericsson in the first English FRAND claim; or
- To enter into another agreed form of mutual regime within 14 days of the date of the order.
Lenovo was clear that the intention of its application was for Ericsson to accept one of these alternatives (rather than be subjected to an injunction in the UK) which would mean in effect that Ericsson would not be able to pursue or enforce injunctive relief in this or any other jurisdiction. On this basis Lenovo argued that its loss if the order sought was not granted would also include its losses suffered in Brazil and Colombia where it would continue to face injunctions for infringement of Ericsson's patents.
The judge did not accept this position finding that the there is no connection at all between the alleged infringement of the patent in suit in the UK proceedings and the losses suffered in Brazil and Colombia. Indeed, the Court considered that the proper application in these circumstances would have been for an anti-suit injunction which Lenovo had not brought (presumably because Lenovo considered that it would not be able to show the conditions for an anti-suit injunction to be satisfied).
Separately, in a judgment last month the English Court did grant Lenovo permission to amend its pleadings to include a claim for an interim licence between the parties ([2024] EWHC 846 (Ch)). Whilst the judge in that application considered that there was some force in Ericsson's arguments that Lenovo was seeking to add a claim for an interim licence as an objectionable attempt to influence injunction proceedings in foreign courts, he did grant the application as he considered the claim met the threshold for the 'merits test' for permission to amend under the CPR. It seems less clear that the claim for an interim licence will ultimately be successfully, particularly as a similar claim for an interim licence was rejected in the case Lenovo v InterDigital [2024] EWHC 596 (Ch).
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