LD Mannheim, April 20, 2026, Order, UPC_CFI_1291/2026, Anti-Anti Suit Injunction against “Interim Licence” application before Chinese Court

Imminent infringement of patents within the meaning of Article 32(1)(a) UPCA is not only its unlawful use. Also the application for a foreign injunction with the aim to prevent the patentee to enforce its patent rights in the common forum of the UPCA Contracting States constitutes a (threatened) patent infringement. This right may also be the subject of interim relief under Article 32(1)(c) UPCA. The UPC’s competence for provisional measures extends under the principle of ancillary competence to secure the right to a judicial remedy with regard to the infringement action falling under Article 32(1)(a) UPCA.

A parallel AASI application before a national court does not create lis pendens, because that proceeding concerns the assertion of other IP rights in the national forum that are to be protected by an AASI.

An “Interim Licence” directed exclusively against patent holders seeking to enforce their foreign IP rights in foreign jurisdictions, including before the UPC, is in substance an ASI.

The Court based this characterisation on several key findings:

(i) the respondents’ own evidence identified the measure’s purpose as preventing injunctions abroad (mn. 25);

(ii) a worldwide “Interim Licence” is not necessary to protect the Chinese rate-setting proceedings – those proceedings are in the hands of the Chinese courts, and the main rate-setting action was expressly not challenged in the AASI, thus distinguishing the present case from the Interdigital/Amazon proceedings (UPC_CFI_936/2025);

(iii) the “Interim Licence” is designed to provide a contractual defence in every foreign forum, including the UPC, to block injunctive relief (mn. 26, 29);

(iv) non-compliance was sanctioned by severe financial penalties (such as approx. €124,000 per day) with a deterring effect on patent enforcement, similar to the “classic ASIs” of Chinese courts (mn. 29, 31, 32); and

(v) acceptance would amount to de facto enforcement of a foreign decision in the EU without recognition proceedings — violating fundamental principles of international civil procedural law (mn. 32).

The Mannheim LD held that the patent right inherently encompasses not only its substantive exclusionary scope but also its procedural enforceability, i.e., the right to bring and pursue enforcement proceedings before the UPC. The Mannheim LD – expressly deviating from the Munich LD’s dogmatic derivation – derives this right directly from Art. 62 et seq. UPCA and the enforcement powers conferred upon the Court by the Agreement itself; hence, articulating an autonomous UPCA-based foundation.

The Mannheim LD emphasised that the right is further reinforced by Art. 47(1) and (2) EU-CFR – guaranteeing the right to an effective remedy and access to an independent court – applicable to the UPC via Art. 20 UPCA, and by Art. 6 ECHR, which secures the right to access to court and a final decision as part of the acquis communautaire recognised by the CJEU (mn. 20, 21). The Court also pointed to Art. 17(2) EU-CFR, which classifies intellectual property as a protected (quasi-)property right, and to Directive 2004/48/EC (Enforcement Directive), whose recitals and provisions (Arts. 3, 4(a), 9(1)(a), 11) confirm that procedural enforceability is a core element of IP rights secured under EU law.

In sum, measures undermining the patent holder’s ability to enforce their patent rights before the competent UPC constitutes an interference with this inherent component of the patent right and may be countered through provisional measures under Art. 32(1)(c) UPCA – irrespective of their name tag.

Seeking a worldwide “Interim license” to deprive a patent holder of access to justice before an EU court – and compelling acceptance of licence terms through a foreign court order – constitutes an inadmissible litigation tactic that violates the principles of comity and the acquis communautaire of the EU and its member states (mn. 28). Compliance with a foreign “Interim Licence” would amount to the enforcement of a foreign decision within the UPC’s jurisdiction without prior recognition or exequatur proceedings – a fundamental violation of international civil procedural law and, in any event, likely be contrary to ordre public in the EU according to the Mannheim LD (mn. 30, 32).

The UPC is bound under Art. 20 UPCA to ensure the primacy of EU law, including Art. 101, 102 TFEU. An “Interim Licence” would pre-empt the Court’s own assessment of whether SEP enforcement is compliant with EU competition law and would foreclose the possibility of a referral to the CJEU under Art. 267 TFEU. The Court stressed that the determination of FRAND terms – including the methodology and comparability factors – must remain subject to EU competition law scrutiny, not be dictated by a foreign court not bound by the EU legal framework (mn. 36). The Court also referenced the WTO Report of 21 July 2025 (WT/DS611/ARB25), finding China’s ASI policy violates the TRIPS Agreement.

Due to the potential implications for EU competition law, the LD ordered the Registry to transmit a copy of the order to the European Commission pursuant to Art. 6 and 15(2) of Regulation (EC) No 1/2003 (mn. 53).

Objective urgency was established because the Chinese court hearing on the “Interim Licence” was imminent. The balance of interests favoured the applicants because the AASI is purely defensive, shielding only UPC proceedings without preventing the respondents from pursuing their own rights or the foreign main rate-setting proceeding, which was expressly excluded from the scope of the LD’s AASI (mn. 35, 37).

Ex parte issuance was justified in the view of the Mannheim LD because prior hearing of the respondents would have risked irreparable harm, as they could have used the delay to obtain an ASI or equivalent measures from the Chinese court to protect their “Interim Licence” application, thereby defeating the very purpose of the AASI (mn. 38).