No sword of Damocles for Lenovo in FRAND dispute

24/05/24

On 23 May 2023 the High Court (Mrs Justice Bacon) declined an application by Lenovo for an interim injunction against Ericsson in the context of the parties’ multi-jurisdictional FRAND dispute.

The Court observed that the injunction sought was in “unusual terms”, because while paragraph 1 sought to restrain alleged patent infringement, paragraph 2 contained a proviso to the effect that paragraph 1 would not apply if Ericsson agreed to one of three possible ‘Preferred Alternatives’ designed to induce Ericsson to abandon or not enforce injunctions obtained against Lenovo in Brazil and Columbia.

The Judge commented that a proper application to achieve such an outcome would be an anti-suit injunction, but that was not what was sought, presumably because Lenovo considered that it would not be able to satisfy the conditions for such relief. Instead, Lenovo sought “an interim injunction granted in terrorem: a sword of Damocles that will remain suspended only on condition that Ericsson abandons the interim relief obtained in Brazil and Columbia, and its pursuit of interim relief in any other jurisdiction.” The Court declined to order what it termed “anti-suit relief by the back door.”

Applying the conventional American Cyanamid test for interim relief, the Court was satisfied that damages were an adequate remedy for alleged infringement of Lenovo’s patent in this jurisdiction, and that the damage that Lenovo complained of was caused not by any alleged patent infringement, but by Ericsson’s enforcement of its own patent rights in Brazil and Columbia. It held that the only reason for Lenovo’s reliance on its patent was to “use the threat of an injunction … as a bargaining chip for the purposes of the Brazilian and Columbian proceedings” and that this is “categorically not a basis on which an interim injunction can be granted in this jurisdiction.”