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New UK judge: FRAND anti-anti-suits could create ‘total mess’

In his first interview since joining the bench, Mr Justice Mellor talks exclusively to Managing IP about why some FRAND litigation tactics are not sustainable

The newly appointed judge at the England and Wales High Court says judicial authorities may need to show restraint to avoid running into a “total mess” in FRAND patent disputes.

Speaking exclusively to Managing IP, Mr Justice James Mellor says the rising trend of anti-anti-suit injunctions is not sustainable.

“It does create a potentially very difficult situation. It is going to require some forbearance amongst judicial authorities across the world, otherwise we are just going to get into a total mess,” says Mellor.

Anti-anti-suit injunctions aim to get a court to stop the infringement proceedings of a company in an anti-suit injunction in another country. In each instance, one jurisdiction is pitted against another as standard essential patent owners and implementers go to war over fair, reasonable and non-discriminatory (FRAND) licensing terms.

At the MIP International Patent Forum earlier this month, counsel said a major concern for industries involved in FRAND disputes is that if companies continue to escalate their litigation battles, there is no telling where the trend will end.

Defining things in simple terms, Mellor notes that each patent is a monopoly granted by a particular jurisdiction, and that each jurisdiction has to have the power to rule on that monopoly right. “I suppose that’s the route of the problem, with multiple territorial rights at play.”

He adds: “You have to look at your own jurisdiction and not overstep it. There are certain jurisdictions around the world where they will say ‘you have overstepped the mark’; often that is disputed because the precise basis is not understood.

“We have to wait and see what happens with the anti-anti-anti-suit injunction trend.”

The full interview, in which Mr Justice Mellor also discusses why he moved to the bench, why a fully equipped patents court is so vital, and why ‘soft IP’ disputes are just as important as complex patent cases, will be published in due course.  

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