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

Mr Justice Meade:

This is my judgment on the hearing of an application by the First to Fifth Defendants (“InterDigital”) to set aside or in the alternative vary the interim anti-anti-suit injunction that I granted the Claimants (“Amazon”) ex parte on 20 October 2025 (the “AASI Order”) and continued on 30 October 2025 (the “AASI Continuation Order”).

Mr Bloch KC appeared for InterDigital (with the assistance of Mr Campbell KC) and Mr Key KC for Amazon.

I have given a number of judgments in this litigation in fairly rapid succession. Three in particular matter for the purposes of this judgment:

In the interests of timely provision of this judgment, I do not intend to paraphrase or summarise those earlier ones. However, rather than simply invite the reader of this judgment to go and read all of the earlier ones I will, for convenience, set out here the key parts of each. The CMJ gives the general background; the EAJ is the main judgment about the basis for granting the AASI Order; the RDJ provides some important procedural context to InterDigital’s complaints, and its conduct.

The key parts of the CMJ are as follows:

It will be significant to what I say later that InterDigital initially, and I concluded deliberately, said that the UPC judgment did prevent Amazon from pursuing final RAND relief in this Court.

Although this application is not a review of the EAJ (see below), that judgment is a central part of the context and the key parts are as follows:

I will be referring back to parts of the EAJ below but for now mention two points:

I should also mention that on the day after the hearing before me (i.e. on 26 November 2025) the German national court in Munich gave a written judgment maintaining its ASI. This was communicated to me by the parties on 1 December 2025 (along with informal translations) by which time I had substantially completed this judgment. The parties have not asked to make submissions on the 26 November decision, or done so.

The key provision is the injunction itself at paragraph 5:

“Until after the return date or further order of the Court, the Respondents (and each of them), whether by their directors, officers, partners, employees or agents, or in any other way, must not take any steps in any court or tribunal (wherever situated) to seek any orders, measures or other relief (including, without limitation, anti-suit relief) which would, directly or indirectly:

a.

restrain, prevent or prohibit the Applicants or any of them from pursuing the Final Relief (or any part of it), the AASI Application, the Continuation Application, and/or the Expedition Application;

b.

require the Applicants or any of them to withdraw any claims for the Final Relief (or any part of it), the AASI Application, the Continuation Application, and/or the Expedition Application;

c.

seek to penalise the Applicants or any of them for the pursuit of the Final Relief (or any part of it), the AASI Application, the Continuation Application, and/or the Expedition Application.”

“Final Relief” is defined in detail in an annex to the AASI Order. It is not necessary to set it out here.

The material parts of the RDJ are as follows:

As I have said above and as the RDJ thus records, Amazon was ready to deal with continuation or set-aside of the AASI Order on 30 October, but InterDigital wanted time, which I gave. But all that InterDigital has done since then is to serve (on 3 November) its Grounds to Challenge the UK AASI Order (“GtC”) which just said what Mr Bloch had indicated it would say at the 30 October hearing, as well as asserting lack of clarity in the AASI Order in various ways, which were then pursued in correspondence and which I deal with below. Despite saying that it had no intention to seek an ASI restraining Amazon’s pursuit of final RAND relief (and made no threat) InterDigital served no evidence about intention, whether from its employees or from its legal representatives, even though the question of its intention was actively put in issue by InterDigital and is a matter of fact which could certainly be addressed in evidence, and I expected that it would be, if only briefly. The avoidable delay which has resulted from not hearing the continuation and set-aside applications is very unfortunate because it meant that the UPC hearing on 14 November 2025 went ahead without this present judgment and the UPC decided it could not give a final decision on the review of the UPC ASI until this judgment is given and the parties have had an opportunity to provide written submissions on this judgment. I understand that the deadline for the parties to provide those submissions is currently 5 December 2025 and to try to facilitate that I have handed down this judgment and made it public immediately, but subject to typographical corrections, rather than with the usual embargo.

I cover these in the CMJ in passages from [12] to [26] which are quoted above. They are expressed to cover interim licence relief. Although interpretation of those Orders and enforcement are matters for those courts and not for me – I stress that I am not even asked to enforce them – they do not on their face read as if they restrain final RAND relief and, as recorded above, after some unsatisfactory to-ing and fro-ing InterDigital accepted as much at the time of the CMJ. Whether it still accepts it or is trying to backslide remains in question to some extent, as the EAJ touched on.

I have been provided with an agreed note of the UPC hearing (there are some points on which the parties’ representatives’ notes differ but they are not very material). It is not an official record and what transpired is not always clear from it. This is not a criticism but just inevitable in the circumstances and I am grateful for the assistance it has provided. I think I must be very careful about reading anything into the detail of the note. It is only safe to use it to get a general idea of what happened and of the matters of interest and concern to the UPC. I comment briefly below on the reverse situation, given that transcripts of the hearing on 30 October have been provided to the UPC, at its request.

On 3 and 4 December 2025 I will hear InterDigital’s application challenging jurisdiction and seeking to set aside service out. I will refer to that as the “Jurisdiction Hearing”.

As a result of another judgment which I gave at the same hearing on 30 October, Amazon’s claims for final RAND relief will be tried in a substantial trial, starting on 15 September 2026 (I refused the higher degree of expedition that Amazon sought). I will call this the “Final RAND Trial”. Of course, the Final RAND Trial will not take place at all if InterDigital succeeds at the Jurisdiction Hearing.

Amazon’s overall objective at the Final RAND Trial is to obtain global licence terms for InterDigital’s video streaming portfolio, including encoding, decoding and implementation patents, and an order for specific performance requiring InterDigital actually to grant such a licence. As well as jurisdiction, Amazon has numerous hurdles to clear before it achieves that overall objective. For example, it will have to defeat InterDigital’s argument that a patentee’s ITU RAND obligation is merely one to negotiate in good faith, it will have to show that the ITU RAND obligation bites on encoding patents as well as decoding, and it will have to show that specific performance is an available and appropriate remedy. These are just examples, there are others.

It is no part of my function on this application to assess the merits of those matters. I mention them because in what follows I will refer on occasion to the consequences if Amazon wins at the Final RAND Trial and I want to make clear what such a victory would require. I am not assuming that Amazon will win, only that the possibility and its consequences have to be considered.

At the 30 October hearing I expressed the view that if InterDigital did not want or intend to get an ASI restraining Amazon’s pursuit of final RAND relief then this set-aside application might well be a waste of time when there are much more important matters to attend to, notably the Jurisdiction Hearing and pleadings on the RAND case. InterDigital however pressed ahead, asserting that the existence of the AASI Order is a matter of principle.

It therefore came as a surprise at the hearing when Mr Bloch, in response to my question as to whether InterDigital accepted that the Final RAND Trial would in fact go ahead in September 2026, said (reading out written instructions):

“I am instructed that InterDigital will not apply for an anti-suit injunction to prevent final relief in the UK”.

I do not understand why InterDigital could not have used the time that it specifically asked for at the 30 October hearing to explain this in evidence, formalise it, and engage with Amazon over it. The present hearing might still have been necessary (and to be fair, Mr Bloch went on to maintain the position that there is a point of principle at stake) in order to deal with the points where InterDigital says that the AASI Order requires clarification, but equally it might have been avoided, would at least have been shorter and less disruptive, and could much more easily have taken place before the UPC’s important hearing on 14 November.

At my invitation, after the hearing before me, InterDigital considered whether it could provide something more formal to reduce or eliminate the need for decision(s) from me. InterDigital proposed an undertaking in inter-solicitor correspondence on 26 November (the day after the hearing), Amazon replied on 27 November, and InterDigital came back on that on 28 November. I am not going to go into all the details; the letters have become long and complex. My initial view when I read InterDigital’s undertaking was that it might be a place to start but overall was inadequate and did not address Amazon’s legitimate concerns. The most obvious point (to me) was that it did not deal with the possibility that InterDigital would yet again change its stance and try to contend or contrive that the existing German and UPC ASIs prevented Amazon seeking final RAND relief in the UK. Amazon’s 27 November response raised other highly material and in my view valid points and InterDigital’s 28 November letter is inadequate to address them and was unduly argumentative and aggressive. I recognise that InterDigital’s assurance at the hearing could have set the ball rolling, and had it been done earlier so as to allow time for reflection and constructive discussion then the hearing could have been very significantly shorter and simpler, but InterDigital just left it much too late.

InterDigital’s GtC raises points under three categories:

The first two points are bases for setting aside the AASI Order; the third would only lead to its variation. However, it is sensible to address what the AASI Order means and any clarification that is appropriate before assessing comity.

InterDigital does not assert any lack of full and frank disclosure by Amazon.

Amazon contends that the AASI Order should be continued, essentially for the reasons why it was granted in the first place. It says there is a threat and intention on InterDigital’s part, and it says that there is no lack of comity because any intrusion on what can be argued in the UPC and the German court (or anywhere else) is little to nil.

Amazon’s skeleton explains its position on the various matters of alleged lack of clarity. It does not accept that there is any lack of clarity but does not (as I understand it) oppose clarifying changes which do not change the material effect of the relief and which I consider appropriate.

The main issue for me is whether to set aside or whether to continue the AASI Order. I believe it is clear that I am not conducting a sort of appeal from myself or merely a review of the EAJ; I must consider afresh whether AASI relief is appropriate.

InterDigital relied on the decision of Birss J (as he then was) in Merck Sharp & Dohme v Teva [2013] EWHC 1958 (Pat) at [39]-[59], which includes reference to the well-known and graphic passage in Paul v Southern [1964] RPC 118, (Harman LJ):

In other words, a Claimant cannot get an injunction just by asserting a fear something will be done coupled with the argument that if the Defendant does not intend to do it, an injunction will do no harm. If it were so, there would be a self-fulfilling route to an injunction in every case where it is resisted.

I do not think Amazon disagreed with these principles. Mr Key met the argument on the facts. He said there was a concrete and definite threat and that the situation before me on the AASI application was one analogous to InterDigital’s already having hit Amazon with two volumes of the Patent Reports and getting ready to do it again. I return to the facts below.

Both sides said that the relevant principles relating to anti-suit injunctions generally were properly summarised in JP Morgan International Finance Ltd v Werealize.com Ltd [2025]EWHC 1842 (Comm), (Foxton J) at [107], citing Males LJ in SAS Institute Inc v World Programming [2020] EWCA Civ 599. I referred to this specifically at EAJ [22] (where I accidentally anticipated Foxton J’s forthcoming elevation).

InterDigital also referred to other cases about comity in this context, for example Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023, at [50] (Toulson LJ):

Amazon agreed that this was relevant and indeed also cited it in its skeleton along with other decisions to like effect. I did not specifically mention Deutsche Bank in the EAJ, but I referred to comity on a number of occasions ([25], [36]) and I cited my own decision in Cook v Boston [2022] EWHC 504 (Pat), which itself quoted the above part of Deutsche Bank at [20]. So I certainly had it in mind when giving the EAJ, although of course that does not mean that I was necessarily right about comity, and InterDigital is free to raise it for fresh consideration inter partes. In addition, in the EAJ I was only concerned with the implications for comity of an order holding the ring until a return date, whereas now I am dealing with the longer-term position.

In any event, I do not think there was any dispute about this aspect of the applicable principles.

By contrast, there was something of an argument, or at least a potential one, about the necessary degree of probability that must be shown that the respondent to an AASI will, if not restrained, seek an ASI. InterDigital said that there must be a “strong” probability, relying on my judgment in Koninklijke Philips v Guangdong Oppo [2022] EWHC 1703 (Pat). In fact the part from my judgment quoted in InterDigital’s skeleton argument was itself a quote from the decision of Marcus Smith J in Vastint v Persons Unknown [2018] EWHC 2456.

The question which arises for me is whether “strong” probability implies an absolute standard, such as more likely than not, or whether it implies a standard that is sensitive to other factors, such as the gravity of the harm that will occur if an injunction is refused and the defendant does that which is feared. In my view it is clearly the latter, since Marcus Smith J said as much in Vastint and I did too, in Philips at [19] (I went on to say at [20] that the likelihood would always be a significant factor). If it ever was InterDigital’s position that “strong” was an absolute standard, Mr Bloch did not press the point. Instead, he said that the standard, while variable in response to other factors, still requires a “strong” risk in a qualitative sense. I am not sure this is an entirely helpful way of expressing matters, but I certainly do accept that if the risk of the defendant doing that which is feared is low, other factors such as the harm which might follow would have to be correspondingly much stronger. And I agree that in relation to anti-anti-suit relief, where comity has to be considered very carefully, there must be heightened attention to the issue of likelihood.

Ultimately, however, these are details, albeit very important ones, in the context of the overall test, which I agree with Mr Key is what the interests of justice require. He also said that it did not matter whether the test was an absolute assessment of likelihood or a flexible, multifactorial one because Amazon would prevail anyway.

This has been a rather abstract analysis. Where this fits in concretely is that InterDigital says that I went wrong in the EAJ because I did not turn my mind to whether there was a “strong probability” that InterDigital would seek ASI relief in Germany or the UPC (or elsewhere) against final RAND relief if not restrained. It points to [27], [28] and [29] where I used other expressions such as “sufficiently arguable” and “seriously arguable”.

InterDigital’s points in this respect are to some extent justified, but in other respects, not. For example, when I said “seriously arguable” in EAJ [28] I was not talking about likelihood of InterDigital’s seeking an ASI, I was addressing whether Amazon had a serious argument that a final RAND licence was at the heart of the UK proceedings, a different issue. Likewise, in [27] I was not talking about likelihood of InterDigital’s doing so, but whether Amazon had sufficiently, overall, made good its application under the headings of protection of the English Court’s jurisdiction, or vexation and oppression. On the other hand, I did say “at least arguable” in [29] in the context of InterDigital’s intentions when assessing, specifically, Ms Stephens’ paragraphs 11 and 95(b). But I went on to say that InterDigital “may well be intending” to block a final RAND determination in the UK, which is obviously a stronger statement.

In any event, it is true that I did not expressly call out whether there was a “strong probability” in those exact words. The EAJ must of course speak for itself but I think a fair reading is not that I thought there was no more than a merely arguable possibility that InterDigital would seek an ASI if not restrained, but that there was a serious possibility (“may well be intending”, and “very real likelihood” in [34]) which taken along with other factors justified the Order sought. So to the extent it matters, I accept that I could have been clearer but reject the argument that I did not have the right overall approach in mind.

I felt it necessary to deal above with the way I expressed myself in the EAJ given InterDigital’s arguments, but in a way it is by-the-by because InterDigital does not say that any error that I made in this respect is itself a ground for setting aside the AASI Order (and this hearing is not a review of the EAJ); Mr Bloch made that clear. Nor is any allegation made that Amazon failed in its obligation of full and frank disclosure by not addressing me at the ex parte hearing on the relevant standard and authorities; again, Mr Bloch was clear about that. What InterDigital does say is that I must now assess the likelihood against the correct standard in considering whether to continue the AASI Order or to set it aside. I agree with this, and furthermore it is a different exercise because I am now considering the situation longer term than just until a return date in the near future.

I will deal with threat and intention first. I will then deal with the alleged needs for clarification. Although InterDigital understandably addressed comity prior to clarity in its GtC, skeleton and oral submissions, the points raised in the name of alleged lack of clarity ought to be dealt with so that the real effect of the AASI Order can be identified and factored into comity. So I deal with comity third.

InterDigital argued that the assessment of threat and intention (a) all turned only on Ms Stephens’s paragraphs 11 and 95(b), (b) that she was discussing only the issue of expedition of the Final RAND Trial, and (c) that the AASI Order was directed purely at the risk of InterDigital interfering with expedition.

Each of these contentions is obviously wrong.

As to the first, the assessment of threat and intention also has to take into account:

These matters were all factored into my decision in making the EAJ, and remain relevant. Ms Stephens’ evidence fortifies the position because it says that InterDigital considers that Amazon’s seeking of final RAND relief at an expedited trial in the UK would be regarded as unacceptable by the German court and the UPC and would circumvent their orders: a very close parallel to the purported justification for the ASIs.

Since the EAJ, InterDigital has doubled down on these contentions in court documents filed with the UPC. It has also conspicuously failed to put in any evidence about its intentions as to seeking an ASI against Amazon’s seeking final RAND relief, if it were free to do so. I consider that I am entitled to draw an inference from that omission: that it does have such an intention. Mr Bloch said that InterDigital ought not to have been obliged or pressured to explain its intentions in evidence lest it be interrogated or challenged but I reject that: parties put in evidence about their intentions all the time, especially when the effect of the evidence is that they do not intend to do that which is alleged. If they put in such evidence it might be challenged, but there is nothing wrong with that.

As to the argument that Ms Stephens was only addressing expedition, I reject that because although opposing Amazon’s application for expedition was the immediate procedural context of her statement, the conduct she was saying would be unacceptable to the UPC was expedition of final RAND relief, because such relief would create a licence and hence (Amazon would say) a defence. See EAJ [10], to which I adhere.

For essentially the same reasons, it is wrong that the AASI Order was directed only at InterDigital’s potentially interfering with expedition. That was not the relief sought or the Order made: they were to protect the ability of Amazon to seek final RAND relief, whether expedited or not.

The reason that InterDigital argued that the AASI Order was directed only to preventing interference with expedition was that it said that expedition has now been ordered so no AASI is needed any longer. Of course the flaw in that argument is that if the AASI were lifted InterDigital might then seek an ASI against the seeking of final RAND relief and stop it from being sought at the Final RAND Trial, whether expedited or not.

Overall, I conclude that InterDigital would dearly like to prevent final RAND relief being sought in the UK and that there is a very high likelihood that if not prevented by an AASI then it would seek to expand the ASI relief in Germany or the UPC (which after all would only be to revert to the position that it at one stage claimed it had already achieved). I consider that this is a “strong” possibility on any view or standard, as Mr Key argued.

There are a number of points about effect/lack of clarity. The first seems to me the most important but I will deal with each of them.

From the UPC’s directions order of 14 October and from the note of the hearing of 14 November, it is clear that the UPC is concerned about the effect of final RAND relief if Amazon obtains any, and in particular if it obtains an order for specific performance requiring InterDigital to give a licence with global terms, and this is one of the matters on which InterDigital says that the AASI Order should be clarified.

Amazon has been cooperative in making its position clear. It says that:

Amazon stated these matters in its skeleton argument for this hearing at paragraphs 13(3) and 19:

Thus Amazon itself seeks from me the clarification which InterDigital says is necessary; I provide it in this judgment, and although I do not think it is actually necessary to do so I am going to include wording in the Order I make (I conclude below that I will make one). It should be noted that in 19(1) above, “subject to” means “within the scope of”. It does not mean that InterDigital’s right to bring infringement proceedings is limited by any English Court Determined Licence. Its right to bring those proceedings would not be fettered by such a licence. I deal with InterDigital’s unchallenged right to bring infringement proceedings in other jurisdictions below.

I observe that Amazon’s position in this regard appears to be consistent with what it said at the UPC at the 14 November hearing (paragraph 50 of the note provided to me).

InterDigital raised a concern about whether the AASI Order prevented it from bringing overlapping rate-setting claims in other courts. This is another point where clarity and comity interact.

InterDigital argued that it was implicit in Amazon’s position, or the attitude of this Court, that only a UK court could deal with a claim to set global RAND terms, or that it is in some way a superior court to the German court or the UPC. This is also incorrect. It was and is not Amazon’s argument, or the attitude of this Court. Since Unwired Planet the UK courts have been willing to address global (F)RAND terms, and other courts have taken or may take similar views (see below in relation to comity). But that has not involved saying that only a UK court can do it. It is a consequence of the ETSI and ITU rules and policies not containing a dispute resolution mechanism or choice of forum that the same issues about licence scope, terms and rates might be raised in more than one court in parallel. That would be much better avoided, as Arnold LJ has often pointed out, but if it happens then there are mechanisms for seeking to address it, by lis pendens or case management stays, by one court voluntarily declining jurisdiction in favour of another, or by the operation of res judicata. It should be noted that these are all mechanisms by which a court might decide within its own procedures not to proceed with global rate setting: none is a mechanism by which one court tells another in a different jurisdiction what to do or what not to do. These are points that may to some extent be under consideration at the Jurisdiction Hearing.

In its GtC, InterDigital raised five bases on which it said that the AASI Order should be varied, in order to clarify that it does not [I quote from InterDigital’s skeleton]:

In addition, because of points raised in the UPC proceedings (in one instance by the UPC itself and in another by InterDigital) there was discussion about whether the AASI Order would:

It goes without saying that any order, but especially one for an injunction, should be as clear as possible. If the AASI Order was or is avoidably unclear then I am of course open to clarifying it. Even were I to think that it is clear but also that InterDigital has a reasonable (if misplaced) concern then I would be willing to consider including a provision “for the avoidance of doubt”, although experience teaches that those often have the opposite effect. I am also happy to include clarifications if I think they will assist the UPC or the German court.

At the same time it is almost impossible to draft an order that has no room for doubt at the outer bounds of its scope and parties can always propose an edge case in respect of which an order is potentially unclear. It is not an excuse for an avoidably unclear order that the party affected can seek clarification from the court, but nor is it wrong to respond to unrealistic or fringe examples that that route is open.

In the present case, as I have said, InterDigital raised a number of areas where it was said there was a lack of clarity, both in its GtC and in a letter of 31 October 2025. It asked in relation to the five points mentioned above whether the AASI Order prevented InterDigital doing the various things listed. Amazon responded constructively in correspondence on 3 November, but in some instances all it could say was that InterDigital could take the steps listed as long as it did not seek an anti-suit injunction. For example, it said InterDigital could pursue arbitration generally, but not so as to breach the AASI Order. I think Amazon’s approach was a fair one.

Amazon gave further details of its position in a letter of 12 November. In letters of 18 November and 19 November, in the run up to this hearing, it asked InterDigital to provide clarificatory wording in one specific respect (which I will cover in more detail in a moment), but although saying it would do so in good time for this hearing, InterDigital did not do so, which is disappointing and unsatisfactory.

The specific point was this: Amazon pointed out in that correspondence that InterDigital had raised in the UPC (in a Reply brief of 10 November 2025) the question of whether, in the event of specific performance being ordered, InterDigital could argue in the UPC (or Germany) that such a licence “would not be valid”. The Reply brief also said that InterDigital was seeking clarification. In fact, neither the GtC (as Amazon pointed out) nor InterDigital’s letter of 31 October had raised that as a point of lack of clarity. The point became a major one in InterDigital’s arguments to me, and I have dealt with it separately above, which increases my frustration that InterDigital had not addressed it earlier. It was left to Amazon to address the point as best it could in its skeleton, which it did in the passages quoted above (paragraphs 13 and 19).

As I said in the course of argument, some of InterDigital’s points on clarity are fair and reasonable ones but others are just attempts to make trouble where there need be none. A number of InterDigital points are problematic because of their own vague and general phrasing. I would note that a number of the points that it makes would apply with at least equal force if not greater to the ASIs which it itself obtained from the UPC and from the German court (for example about regulatory authorities) but I do not intend to go into them in detail, and this is not a criticism of the ASIs but just a point that InterDigital is applying inconsistent standards.

Because the AASI Order refers to “any court or tribunal” it applies on its face to these very proceedings in this Court. InterDigital says that this might cut across its ability to defend the proceedings on the merits, or to contest jurisdiction. Amazon responded that that is not the case but that the AASI Order would prevent InterDigital from seeking anti-suit relief in these proceedings. InterDigital’s position is unreal in its substance because Amazon has not remotely suggested that InterDigital cannot fight the case or contest jurisdiction, while Amazon’s notion that InterDigital might seek an ASI in these proceedings against these proceedings themselves is equally unreal, and if it did seek it then of course it would be bound to fail. So this is angels on the head of a pin from both sides, but for good order I will amend the AASI Order to exclude these proceedings in this Court (the Patents Court in England and Wales) from its scope. Although I consider Amazon’s response fanciful there was really no need for InterDigital to try to make anything of it.

InterDigital can take whatever steps it considers appropriate in these contexts as long as it does not use them to seek anti-suit relief. InterDigital conspicuously failed to identify anything concrete which is a problem.

I will just mention that some discussion occurred about the European Commission. The Commission came up because I mentioned it, just as an example of a regulatory authority, in the course of argument. Mr Bloch later suggested that Amazon had said that the AASI Order bit on steps that might be taken by InterDigital in the Commission. Amazon absolutely did not do that. Nor did I, or do I, intend that the AASI Order should cut across the Commission’s very important work. It does not do so.

In the extremely improbable event that this causes any difficulty, InterDigital can take advantage of the liberty to apply.

This is vaguely expressed by InterDigital but to the extent it means InterDigital’s ability to sue for patent infringement and claim the usual associated relief that follows (injunction, damages etc), this has never been in doubt and I covered it explicitly in the EAJ. I did not include a carve out because I decided that the injunction clearly did not cover it anyway and I thought a carve out would be more likely to cause confusion than reduce it (see EAJ at [39]-[43]). Amazon’s evidence made it clear that infringement proceedings were not sought to be restrained and it has not changed that position since InterDigital began its multiple infringement claims around the world. I reiterate the position now and note that Amazon itself asked for this to be made explicit in paragraph 19 of its skeleton (see above).

I do not believe this point as raised by InterDigital had anything to do with whether it would be free to challenge, in the UPC or elsewhere, a licence resulting from specific performance ordered by this Court, but I have dealt with that separately above and said that I will include appropriate “for the avoidance of doubt” wording into the AASI Order.

This is about InterDigital’s ability to bring overlapping proceedings, in particular I think rate-setting proceedings or proceedings about the scope and nature of the ITU obligations, in other fora. I do not believe the AASI Order is unclear about this. In addition, I do not think this is something that the UPC has had a major concern about (the note I have seen said that the UPC expressed that there should be “reciprocity” between the UPC and the UK courts and if it meant that either can address rate-setting and neither is superior to, or can pre-empt, the other then I completely agree). It would also be difficult to craft a carve out for similar reasons to those that apply to arbitration/regulatory authorities: InterDigital can bring overlapping proceedings so long as they are not used to seek an anti-suit injunction.

It is a basic tenet of anti-suit relief in the UK that when granted it is directed to restrain the opposing litigant and not to the foreign court itself.

I recognise, however, that the AASI Order does not say in literal terms that it does not apply to judges in other courts. So I respect the UPC’s having asked about it, although I have to say that I feel a sense of sadness that another judge in another court might even think that they could be held in contempt of this Court for performing their judicial function. In any event I confirm that it is emphatically not so: there is no question of another judge being in contempt of, or even subject to, an injunction from this Court, and our case law says so very clearly, for example Smith Kline & French v Bloch (No 4) [1984] ECC 352 at [66]:

Thus the UK court does not have any authority over foreign judges doing their jobs, whether in the context of anti-suit relief or otherwise.

I do not consider it necessary or desirable to make a carve out in the AASI Order for this. I think the substantive position is very clear and I would not want to give the impression that without such a carve out a foreign judge (or court staff) might be in breach. I note that the UPC and German ASIs do not contain a carve out for judges or court staff or advocates in other foreign courts. It might be said that that was not necessary because of the literal scope of the ASIs, but as I understand it both jurisdictions probably have the concept of accessory liability for breach of a court order and/or a notion of evading the spirit of an injunction.

I turn to the position of InterDigital’s advisers. My impression from the agreed note of the 14 November UPC hearing was that InterDigital’s representatives had expressed a concern to the Court that they might be in breach of the AASI Order in making arguments to the Court, in other words that the AASI Order had or might have (it being, they said, ambiguous) a gagging effect on them that would hinder them doing their job because they had to worry about being in contempt of the AASI Order. Mr Key confirmed on instructions that this is what happened and Mr Bloch did not contradict that.

Happily, it seems that the UPC said that “even if there is ambiguity in the last order of the UK court, we should discuss issues openly despite the possibility of the parties violating the UK order” (this is a quote from the agreed note, not verbatim what the UPC judge(s) said). So InterDigital’s advisers were, rightly, encouraged to say what they wanted and to meet their duties to their clients.

Unlike the judges of the UPC, InterDigital and its UPC advisers had access to UK lawyers (InterDigital’s UK solicitors were present at the hearing and I have no doubt helped to prepare for it) who could, and if asked would, have told them that the AASI Order did not have the effect of gagging them, even arguably, as the same line of cases referred to above makes clear. From my perspective at least, the potentially inflammatory and factually incorrect statement that the AASI Order might have that effect should not have been made, and I note that it was in InterDigital’s strategic interest to paint the AASI Order in the worst possible light. If there was a genuine concern about a gagging effect then of course InterDigital’s lawyers could have sought comfort from Amazon, its solicitors, or me, and it would have been immediately forthcoming.

As I have said above, it is right to deal with this after assessing the effect of the AASI Order and any clarification that is needed.

Amazon says that the AASI Order, whether as properly understood or as clarified by additional wording, does not limit what can be argued in any other court or tribunal, other than that InterDigital cannot try to stop the UK court from determining final RAND relief. In other words, that all the AASI Order does is to protect this Court’s jurisdiction to determine a claim of substantive legal rights that is properly, subject to the jurisdiction challenge, before it.

I agree with this and in a way no more need be said. I have made clear, and Amazon accepts, that InterDigital can argue to the UPC or the German court that any final RAND relief in the UK is ineffective there, in all the ways set out above. InterDigital can bring and continue infringement claims. It can bring overlapping rate-setting claims if it wants. It just cannot try to prevent the UK Final RAND Trial going ahead.

InterDigital argued that the final RAND relief sought is the imposition of a licence the effect of which would be extra-territorial. It is true that the geographical scope of the licence would, within the UK court’s proceedings, not be limited to the UK. The main reason is that the Unwired Planet approach may lead to the determination of global (F)RAND terms, largely because every licence in this field is global, and the real issue between the parties is always global price. Other courts, in China, the US (if the parties agree) and possibly soon the UPC (the point was formally left undecided in the Panasonic v Oppo litigation but the door seems open) will also consider global terms. The effect of a UK-determined licence in other courts abroad, however, may or may not be extra-territorial, depending on the decisions of those courts where the licence is sought to be deployed. It is up to those courts as explained above.

The additional factor in the present case, compared with Unwired Planet, is Amazon’s argument for specific performance. But given that Amazon accepts that InterDigital can argue anywhere else that a licence imposed by this Court via that route ought not to be given effect, InterDigital is just wrong to argue that the final relief “would have the effect (or the aim) of preventing the courts of each of those countries from determining for themselves whether or not to enforce the property rights granted by each of those countries”.

InterDigital made a number of unhelpful and I have to say provocative comments comparing the way comity applies in the context of the AASI Order and in the context of the ASIs from the UPC and German court. I would have preferred not to have to get into this comparison but dealing with InterDigital’s arguments necessitates it.

As I have said, and at the risk of repeating myself, the AASI Order does not prevent InterDigital alleging patent infringement in the UPC or Germany or any other court. It does not prevent InterDigital from challenging in any other court the effect of any final RAND relief from this Court. It does not prevent InterDigital from starting its own rate-setting proceedings. InterDigital has not identified any substantive legal right that it is prevented by the AASI from asserting, anywhere, and there is none. The only thing it cannot do is try to prevent Amazon from getting a determination of its rights in this jurisdiction.

By contrast, the ASIs prevent Amazon from arguing for an interim licence, which it says it has a contractual entitlement to, a substantive legal right. The decision of the Court of Appeal in Alcatel v Amazon [2025] EWCA Civ 43 means that Amazon’s claim to that contractual entitlement is arguable in English law.

I appreciate, and have said in my earlier judgments, that the UPC and the German court see the whole matter of interim licences and interim licence declarations differently, and I think also have different ways of looking at comity. That must be respected, but there is no lack of respect in pointing out the fact that what is prevented by the ASIs from being argued in the UK court is an arguable claim to a substantive legal right.

The UPC sees the justification for this prevention as lying in the fact that even though a UK court’s declaration of what an interim licence between willing parties would be is not coercive in the sense of restraining the bringing of proceedings in the UPC, it may have a de facto deterrent effect because it characterises the patentee as unwilling. See [45] of the UPC’s reasons for its ASI, which is correct in its statement that interim licence declarations are not coercive: Arnold LJ specifically spelled out in Panasonic v Xiaomi [2024] EWCA Civ 1143 at [97] that foreign courts are entirely free following an interim licence declaration to assess the parties’ conduct and decide what relief to grant, if any. Following the Court of Appeal’s decision in Lenovo v Ericsson [2025] EWCA Civ 182, for example, Ericsson decided to carry on with its global litigation and there was, rightly, no suggestion that it could be prevented from doing so.

The concern about de facto deterrent effect is not one I have to deal with for the purposes of the decision in this judgment as such, and only arises because of the comparison InterDigital sought to draw. I will however say that in the many (F)RAND cases I have experienced over the years it has been reasonably common for patentees to try to leverage in the UK a decision they have obtained abroad, often but not always in a German court (prior to the UPC’s inception), that a defendant implementer is an unwilling licensee, and has been injuncted there. International litigation often leads to an event or decision in court A being perceived to put pressure on one of the parties in court B; it is just in the nature of such conflict. It is a different and important question whether the existence of such pressure justifies court B preventing a legal right even being argued for in court A. By their ASIs the UPC and the German court have said that it does and that is an area where there is room for respectful disagreement.

I have said that it is entirely up to the UPC and the German court to determine the effect in their proceedings of a decision by the UK or other court that a RAND licence should be granted (or already exists) on specified terms according to the law of the contract created by the relevant standard setting body’s rules. Because of the territorial nature of patents it is common that infringement/essentiality/validity claims have to take place in more than one country, or do so. There is no reason, however, why the litigants’ (F)RAND rights and obligations under contract have to be litigated repeatedly: there is after all only one contractual relationship between them, even if there is a multiplicity of potential fora.

If a foreign court finally and properly decided global (F)RAND terms between two litigants over which it had jurisdiction prior to a UK court setting out to do the same, I cannot see anything wrong with the litigant who had succeeded in the foreign court at least arguing (it might succeed or fail) that the foreign court’s decision should be given effect here by res judicata or cause of action or issue estoppel. I also cannot see that the foreign court would have even arguably offended against comity in making that earlier decision. It is just what happens where there is no binding choice of forum. There is no question of either court inflicting some unjustified or arbitrary hindrance on the patentees’ patent rights: contractual (F)RAND obligations are freely assumed by patentees in order to have their technology accepted into the standard as essential, in the calculation that that will make their patents much more valuable. The contractual obligations are not conventional bilateral agreements between the patentees and counterparties known and identified at the time of the patentees’ essentiality declarations because the (F)RAND obligations have to be available to all implementers (at least ones who are willing licensees), to make the system work. This makes the analysis of the contractual position more complex and more debatable (in French law as it applies to the ETSI regime, for example, it works by the triangular stipulation pour autrui) but it does not detract from the fact that deciding the parties’ contractual rights might best be done just once. That does not require or justify any one court appointing itself the best or most important or most powerful and the UK courts have not done that.

In the circumstances described above as a whole I conclude that there is a strong and sufficient intention/threat/likelihood of InterDigital’s seeking ASI relief if not restrained. The circumstances include that there no lack of comity in continuing the AASI. The AASI is, overall, justified to protect this Court’s jurisdiction over final RAND relief and on the basis of vexation or oppression, for the same reasons as given in the EAJ.

A number of recent UK decisions in the context of interim licence declarations and ASIs have referred to de-escalation, though not necessarily by reference to that exact word, and Mr Bloch addressed some brief submissions to the topic.

A particularly important instance is the unanimous decision of the Court of Appeal (Arnold LJ, Birss LJ, Peter Jackson LJ) in Samsung v ZTE [2025] EWCA Civ 1383 at [84]-[88] (in Birss LJ’s judgment) that while the interim period until a final licence is ruled upon is a matter subject to courts’ scrutiny (following Huawei v ZTE itself) declarations should be forum-neutral with a graduated response, and a simple statement about what would be a fair interim licence may well be preferable to an expression of unwillingness or bad faith.

Similarly, Mellor J referred to de-escalation in Warner Bros v Nokia [2025] EWHC 2888 (Pat) at [42] and [120] and indicated at [118] that his forthcoming decision in Acer/Asus/Hisense v Nokia will reflect what the Court of Appeal decided in Samsung v ZTE and aim to further reduce international conflict.

Then, in Paramount v Nokia [2025] EWHC 3083 (Pat) I emphasised at [6] what an exceptional remedy ASIs and AASIs must be, to be justified on the facts of any individual case, and I declined to make an AASI (to be fair, the applicant had backed off from it) or indeed any coercive order.

I should make clear that these general comments about de-escalation are without prejudice to the particular circumstances in Warner Bros and Paramount, both of which cases were back before me for inter partes hearings on 1 December 2025 and at which the position as to anti-anti-suit relief was resolved by contractual terms agreed between the parties, after I rejected an argument that Nokia should have to give undertakings to the Court, which would of course have had the same coercive effect as an injunction.

One can only hope – I certainly hope – that de-escalation will be a cooperative effort internationally with flexibility in all directions. I am of course aware that the UPC and the German court each have to consider Amazon’s applications to set aside the ASIs and perhaps those considerations can take place with these sentiments in mind (postscript: as mentioned above, the German court has rejected Amazon’s application, without the opportunity to consider this judgment, and I have received no submissions on whether there is any de-escalation in its decision).

A number of features of this case make clear how desirable it would be for judges across Europe handling these SEP/FRAND cases to have a better means of communication than at present, and I hope that can be progressed in due course. This is in no way a criticism of the UPC or the German court and there are obvious potential concerns about judges in different countries communicating directly on specific cases (of course they communicate about the development of the law generally).

I would just like to emphasise in this context for future reference that transcripts of argument from this Court are not a reliable way of identifying what judges here have reasoned, or decided. Judges often say things in argument just to test a submission, or they say something and later change their mind prior to their judgment, and so on. Transcripts of argument are not the same as authoritative minutes approved by the Court and individual statements by judges in the course of argument do not receive the same thought as orders and judgments. I mention this because e.g. according to the note I have the UPC referred to pages 90-92 of the transcript of the 30 October 2025 hearing in considering whether specific performance would have an anti-suit effect. The UPC queried why I referred to an English jurisdiction clause, and the reason is simply that I was putting to Mr Bloch a hypothetical example; I am sure Mr Bloch realised this at the time but I did not spell it out.

This is not to say that the UPC or any other foreign court is not entitled to see such transcripts. Of course they are; the hearings are public, and in the present case Judge Tochtermann in his 14 October 2025 directions Order required Amazon to file “minutes” of the UK proceedings, which perhaps led to some lack of clarity over the status of the transcript. Transcripts may also be relevant to see what a party said or admitted, or the position it took. This indication is just intended to help to understand the weight that can be put on what a judge said in argument in this Court.

I will continue the AASI in modified form, the points where additional wording is appropriate being indicated above. The modifications, whose exact terms I will ask Counsel to agree, are essentially just for clarification. In substance I agree with Amazon that the AASI Order is justified in the light of InterDigital’s position and conduct, and must be continued. For the avoidance of doubt, it continues in its existing form until the modifications are agreed and approved by me.