UPC CFI 755/2024 – Avago Technologies International Sales Pte. Limited v Realtek Semiconductor Corporation

Court: Local Division Munich
Date: 2024-12-09
Outcome: The court granted an interim anti-anti-suit injunction and anti-anti-enforcement injunction, prohibiting the defendant from pursuing its US lawsuit aimed at preventing the applicant from enforcing its patent rights in Germany before the UPC. The order is enforceable only after the applicant provides security of €500,000.00.
Sector: Electronics/SEP
Decision Type: Order

Expert Commentary

Full Decision Text

1 Local division Munich UPC CFI 755/2024 Order of the Court of First Instance of the Unified Patent Court issued on 09 December 2024 Guiding principles: 1. Art. 32 (1) a), c) UPCA establishes the UPC Agreement's subject-matter jurisdiction to issue interim measures with which an applicant seeks legal protection against imminent (foreign) prohibitions on conducting proceedings and/or enforcement. 2. A (foreign) prohibition on conducting and/or enforcing proceedings violates the general European right to justice (Art. 47 EU Charter). The prohibitions are also in conflict with the German right to justice pursuant to Art. 2 para. 1, 19 para. 4 GG and are to be qualified as unauthorised acts within the meaning of Section 823 para. 1 BGB. 3. Special circumstances within the meaning of Rule 211.5 RoP cannot only be justified by a (supposedly) long duration of the procurement of a security. 4. Rule 213.1 RoP does not confer any discretion on the court. APPLICANT Avago Technologies International Sales Pte. Limited, 1 Yishun Avenue 7, Singapore 768923, represented by the management, ibid, represented by: Lawyer Schmidt-Bogatzky, EIP Rechtsanwälte, Breite Straße 2931, 40213 Düsseldorf, Germany.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 2 DEFENDANT Realtek Semiconductor Corporation, No. 2 Innovation Road II, Hsinchu Science Park, Hsinchu 300, Taiwan, represented by its CEO Huang, Yung-Fang, ibid. PATENT IN SUIT European patent EP 1 770 912 PANEL / CHAMBER Panel 2 of the Munich local division PARTICIPATING JUDGE This decision was issued by presiding judge Ulrike Voß (rapporteur), legally qualified judge Dr Daniel Voß and legally qualified judge Dr Walter Schober. LANGUAGE OF THE PROCEEDINGS German SUBJECT OF THE PROCEEDINGS Application for the adoption of interim measures - R. 206 et seq. RoP FACTS OF THE CASE 1. The applicant is the registered proprietor of the European patent EP 1 770 912 B1 entitled "Method and apparatus for initialising 10BASE-T networks" (hereinafter: patent in suit). The patent in suit, which is only in force in Germany, relates to the 1000Base-T1 Automotive Ethernet standard. 2. The applicant considers the patent in dispute to have been infringed by the manufacture and sale of the [...] motor vehicle in the Federal Republic of Germany, which is why it is seeking an injunction against [...] and [...] before the UPC Agreement in proceedings UPC CFI 208/2024 ACT 24735/2024 (Munich Local Division, Panel 2). In the statement of claim dated 1 May 2020, the applicant presented what it considers to be a patent infringement based on a chip from the supplier Marvell, which is said to be installed in the [...]. The countered the action with the defence of exhaustion, inter alia with regard to components of the defendant.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 3 3. The applicant is also suing [...] and [...] for the (alleged) use of other patents before German courts and the UPC Agreement, including before the Regional Court of Munich I (case no. 7 O 4992/22) for the (alleged) use of European patent EP 1 903 733, which relates to the 100Base-T1 Automotive Ethernet standard. An oral hearing has been scheduled for 20 February 2025 in these proceedings. 4. The defendant is a semiconductor manufacturer based in Taiwan. It and the applicant concluded a licence agreement which grants the respondent a licence to the applicant's patents, including the patent in dispute, for its [...] products (Annex EIP 4). The licence agreement [...]. 5. By document dated 31 October 2024, the defendant brought an action against the applicant before the Court of Chancery of the State of Delaware (USA). In this action, which was referred to the United States District Court for the District of Delaware, the defendant first asserts a claim against the applicant for an alleged breach of a licence agreement between the applicant and [...] (Annex EIP 2). It also makes the applications B. and C. reproduced below, whereby the word "[...]" is blacked out in the publicly available version of the US complaint in each case: "B. Permanently enjoining Avago Sales from breaching the Licence Agreement by pursuing claims against [...] in Germany for infringing SEPs by using Realtek's products; C. Permanently enjoining Avago Sales from enforcing any injunction it obtains in Germany against [...]." 6. In German: "B. Permanently enjoin Avago Sales from breaching the licence agreement by asserting claims in Germany against [...] for infringement of SEPs based on the use of Realtek products; C. permanently prohibit Avago Sales from enforcing injunctions obtained in Germany against [...];" 7. In the statement of claim dated 31 October 2024 (Annex EIP 2), the defendant , inter alia, that the applicant breached the licence agreement by suing [...] in several courts in Germany for alleged patent infringement because it used the defendant's circuits in its vehicles. This frustrates the defendant's licence to use the applicant's patents. But even if the defendant's products were not licensed, the applicant would have an obligation to licence its patents in accordance with FRAND. However, the applicant did not this obligation. The2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 4 German courts would make their decision by 20 February 2025. If [...] is found to infringe the patents on 20 February 2025, the resulting injunction will stop the sale of [...] in Europe and probably also in the United States and will also decimate [...]'s supply chain. This would cause it, the defendant, immense damage, namely the loss of its supplier relationships. In Germany, the defendant would have no adequate legal remedies at its disposal. It therefore has a claim for injunctive relief prohibiting the applicant from asserting claims in Germany against [...] for infringement through the use of its products and/or from enforcing an injunction obtained in Germany against [...]. 8. In a document dated 7 November 2024, the defendant filed an acceleration request in the US proceedings (Annex EIP 5). With this, it requests that a hearing date be set for the beginning of February 2025 and a decision by the US court before 20 February 2025 in any case. 9. On 22 November 2024, the Munich I Regional Court (case no. 7 O 14547/24) issued a preliminary injunction without hearing the defendant, prohibiting the defendant from continuing the US application, in particular with regard to applications B and C (Annex EIP 1). APPLICATION BY THE APPLICANT 10. According to the application dated 29 November 2024 in conjunction with the document dated 5 December 2024, the applicant applies for the following: 1. The defendant is prohibited, Continue to prosecute the action dated 31 October 2024, initially filed by it in the Court of Chancery of the State of Delaware (USA) (Exhibit EIP 1) (action number 2024-1127-NAC), and subsequently removed to the U.S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW), particularly with respect to Applications B and C, and also insofar as it seeks to enjoin the applicant directly or indirectly, to continue to pursue the patent infringement action filed with the Munich local division of the Unified Patent Court on 1 May 2024 (ACT 24735/2024) or to expand it to include further claims arising from further SEPs of the applicant or to bring further infringement actions for infringement of SEPs from the applicant's portfolio against the companies of the [...] group claimed in the above-mentioned action, namely [...] and [...], or their2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 5 affiliated group companies or other companies of the [...] group, at a local division of the UPC Agreement on the territory of the Federal Republic of Germany, both with effect for the Federal Republic of Germany and with effect for other UPC Agreement member states ("anti-suit injunction"); and to enforce in the Federal Republic of Germany injunctions issued by the UPC Agreement against the companies of the [...] group, namely [...] and [...], or their affiliated group companies or other companies of the [...] group, against which the above-mentioned action is brought ("anti-enforcement injunction"), whereby this obligation to cease and desist includes - the order granting the applications for an anti-suit injunction and an anti- enforcement injunction dated 31 October 2024, which were initially filed in the Court of Chancery of the State of Delaware (USA) (Exhibit EIP 1) (action number 2024- 1127-NAC), and were subsequently transferred to the U.S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW).S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW), regardless of which U.S. court they are currently pending in at the time of execution of this decision, shall be withdrawn immediately upon service of this injunction, - the prohibition to continue these anti-suit injunction and anti-enforcement injunction proceedings, except for the purpose of withdrawing the application, - prohibiting the enforcement of the above-mentioned Anti-Suit Injunction and/or Anti-Enforcement Injunction Orders against the applicant in the event that they are issued in the meantime, and - the prohibition to apply for other equivalent measures aimed at directly or indirectly prohibiting the applicant from enforcing its patent rights against companies of the [...] group before a local division of the UPC Agreement on the territory of the Federal Republic of Germany, both with effect for the Federal Republic of Germany and with effect for other UPC Agreement member states. 2. In the event of any breach of the Order under clause 1, the defendant shall pay to the court a (possibly repeated) penalty payment of up EUR 100,000.00 for each day of the breach. 3. The defendant must reimburse the costs of the proceedings.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 6 4. Orders are effective and enforceable immediately. 5. Orders are issued without prior hearing of the defendant (Rule 206.3 RoP). 6. Service of the Order applied for here, as well as of the Notice of Motion together with annexes and English translations to the Respondent, shall be effected by way of alternative service by informal mail at the registered office of the Respondent, No. 2 Innovation Road II, Hsinchu Science Park, Hsinchu 300, Taiwan, and by informal electronic transmission to Ms. , at the business e-mail address (Rule 275.1 RoP), whereby service shall be deemed to have been effected on the date on which either the commissioned mailing service provider has confirmed that it has delivered the documents specified in this application to the address specified in this application or on which the documents specified here were successfully sent by e-mail to Ms . SUBMISSION OF THE APPLICANT 11. The claimant submits that it became aware of the defendant's action of 31 October 2024 on 1 November 2024. 12. The defendant's action is aimed at a comprehensive prohibition of action and enforcement. If the US court seised were to grant application B., the proceedings UPC CFI 208/2024 ACT 24735/2024 would also be covered by this. As a result, the applicant would be forced to withdraw its patent infringement actions against [...] in Germany relating to EP 1 903 733 and the patent in suit and to refrain from or withdraw further patent infringement actions against [...] arising from standard essential patents (hereinafter: SEP) in Germany and before UPCA . The same applies to the enforcement of any injunctions against [...] in Germany and in other member states of the UPCA, irrespective of whether they concern SEPs of the applicant or not. This is because claim C. is even more far-reaching. According to this, the applicant should be permanently prohibited from enforcing injunctions obtained in Germany and before UPCA courts against [...], irrespective of whether the injunction is based on the infringement of an SEP or not, and whether the defendant is affected at all or not. This prohibition of enforcement therefore concerns all German patent infringement proceedings of the applicant against [...] as well as proceedings before the UPC Agreement. The prohibition should also extend to claims for patent infringement by Ethernet chips in [...] products which are not supplied by the defendant but by other parties such as Marvell.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 7 13. With regard to measures taken by US courts, it is important that any US anti-suit injunctions (hereinafter: ASI) and anti-enforcement injunctions (hereinafter: AEI) are immediately enforceable in the USA. If the applicant were to oppose the measures, this would constitute a "contempt of court" under US law. There would be a threat of considerable fines and possibly even imprisonment, as orders issued in recent years have shown (Affidavit, Annex EIP 6). These could be imposed not only on the applicant, but in any case also on its parent company, Broadcom Inc. 14. The respondent's attempts to justify the requested prohibition of action and enforcement are obviously incorrect and do not result from the licence agreement. In particular, it should be noted that the proceedings in Germany (national and UPC Agreement) are the only appropriate forum to clarify the question any exhaustion of the applicant's patents with regard to [...] vehicles in Germany. Even if the US court were to find that the respondent had a licence to the patents asserted by the petitioner (as it did not), this would not answer the question of possible exhaustion in Germany with regard to [...] vehicles. This clearly shows that the defendant not seeking to enforce its alleged rights under the licence agreement, but is attempting to prevent the applicant's proceedings in Germany (national and UPC Agreement) in favour of [...] by unlawful means. 15. The applicant seeks the protection of such patent infringement proceedings which are conducted and brought before the German local divisions of the UPC Agreement, irrespective of whether they concern applications with effect in other Contracting Member States (i.e. not in Germany). ASI and AEI are incompatible with the European principles of civil procedural law. In any event, they violate the Charter of Fundamental Rights of the European Union (hereinafter: Charter). Furthermore, the behaviour of the defendant is to be assessed in accordance with German substantive law. Foreign prohibitions on legal action and enforcement violate German law, as they an unlawful interference with the applicant's protected legal interests. She is therefore entitled to injunctive relief under tort law pursuant to Section 823 (1) i. V. m. § 1004 BGB to the side. 16. In addition, according to general life experience, it was to be expected that the defendant would not shy away from extending the prohibitions of action and enforcement applied for by it in the USA to other contracting member states, should it consider it necessary. The fact that these are currently limited to "Germany" is in all likelihood solely due to the fact that the applicant can currently only assert her rights against [...] before German courts and German local divisions.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 8 of the UPC Agreement. In this respect, however, there is also a risk of infringement for all other contracting member states. 17. The Order of the interim measures requested here is urgent in terms of time. There is a concrete risk that the US court seised will issue the requested ASI and AEI in the near future. The interim measures were also urgently required in order to avert considerable damage to the applicant. The applicant cannot be expected to wait for the US decision requested by the defendant, which may no longer be effective in view of the threat of significant sanctions, because the applicant would have to withdraw the corresponding actions in Germany before the UPC Agreement under the pressure of the sanctions. The issuance of the injunction requested here is therefore necessary in order to enable the applicant to continue to have effective access to justice (and therefore to the courts). The applicant is therefore seeking interim relief because, in essence, the enforcement of patent rights in the forum here is at risk. Against this background, the applicant's interest in the requested interim measures also outweighed any interests of the defendant. 18. Due to the particular urgency, the applicant's application should be granted without a prior hearing of the defendant. A prior hearing of the defendant would very likely frustrate the purpose of these proceedings. A hearing and the holding of an oral hearing would significantly delay the Order of the injunction requested here, especially in view of the upcoming New Year's holidays, so that it is to be feared that the US court will issue the ASI and AEI measures beforehand. This applies all the more since it can be assumed that the defendant will inform the US court about the proceedings here. In addition, it could be assumed that the defendant would immediately take interim measures itself, a so-called Temporary Restraining Order, in order to prevent the proceedings here, if it became aware of the application for an injunction here. A hearing is also not necessary. This is because the position and legal opinion of the defendant is already clear from its US lawsuit (Annex EIP 2). The documents exchanged in the US proceedings were the only "correspondence" between the parties in this context. In this respect, the defendant's action in the USA was a was a "lawsuit robbery". She, the applicant, had never intended to take legal action against the defendant. 19. The applicant requests that no security be ordered. It is not apparent what damage the defendant would suffer at all as a result of the interim measures applied for here. Conversely, ordering the defendant to provide security would considerably delay the proceedings here. A deposit or bank guarantee would, also in view of the forthcoming2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 9 The applicant's application will in all probability at least three to four weeks. This is already due to the internal processes at the Applicant (Affidavit Annex EIP 7). Added to this is the time required for the (international) transfer of the deposit amount to the depository, i.e. the local court in Bavaria. 20. The UPC Agreement's jurisdiction arises from Art. 32 (1) lit. c), 62 (1) UPCA, since the applicant seeks provisional measures in connection with a European patent asserted before the UPC Agreement. [...]. 21. The applicant is dependent on alternative service. Even if service in accordance with Rule 275.1 RoP is subsidiary in principle, it should be noted that this standard grants the court discretion in accordance with its duties. Accordingly, the court can review whether there are good reasons for not serving according to the procedure actually provided for. Rule 275.1 RoP should not be understood too narrowly if the circumstances of the individual case indicate a particular approach effective legal protection. The provision is also applied on a subsidiary basis if the priority notifications pursuant to Rules 271 et seq. RoP would be recognisably unsuccessful. A conventional attempt to effect service in Taiwan would be practically futile. 22. Reference is made to the statement of claim dated 29 November 2024, the applicant's document dated 5 December 2024, the defendant's statement of claim dated 31 October 2024 (Annex EIP 2) and the defendant's request for acceleration dated 7 November 2024 (Annex EIP 5). PROCESS EVENTS 23. The applicant filed the application for interim measures on 29 November 2024. On the same day, it also filed an application pursuant to Rule 262.2 RoP with regard to the information marked in grey in the application of 29 November 2024. 24. The rapporteur issued instructions to the applicant in an Order dated 3 December 2024. The applicant to this in a document dated 5 December 2024. The applicant has also submitted an application in this respect pursuant to Rule 262.2 RoP. REASONS FOR THE ORDER 25. The admissible application for interim measures is well-founded.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 10 I. 26. The application for interim measures is admissible. 1. 27. The UPC Agreement's international jurisdiction follows from Art. 31 UPCA in conjunction with Art. 71b No. 2 Brussels Ia Regulation. The place where the prima facie case of imminent lies within the UPC Agreement's jurisdiction. 2. 28. The UPC Agreement's subject-matter jurisdiction for the adoption of interim measures (AASI and AEI) results from Art. 32 (1) UPCA. 29. According to Art. 32 (1) c) UPCA, the court has exclusive jurisdiction for actions for the adoption of provisional and protective measures and interim measures. This jurisdiction is in any case related to actions that within the exclusive jurisdiction of the UPC Agreement pursuant to Art. 32 (1) a) UPCA. These are including actions for actual or threatened infringement of patents. 30. Not only the unlawful use of a patent is to be regarded as an infringement of a patent, but also an interference with the patentee's property right by prohibiting the assertion of his patent right (see also: Grabinski/W.Tilmann, in Tilmann/Plasmann, Einheitspatent, Unified Patent Court, 2nd ed., Art. 32 para. 61a). 31. Such a violation of the applicant's property rights is at issue in the present case. With its action of 31 October 2024 (Annex EIP 4), the respondent seeks the issuance of an ASI and an AEI before the US courts. The applicant is also to be permanently prohibited from asserting the patent in dispute before the UPC (before a German local division of the UPC Agreement), and the enforcement of any decisions of the UPC (or a German local division of the UPC Agreement) is also to be prohibited. Such prohibition measures or prohibitions on conducting proceedings interfere with the applicant's property rights in relation to the patent in suit. 3. 32. The jurisdiction of the Munich local division is based on Art. 33 (1) (a) UPCA. The infringement of the applicant's property right is threatened within the jurisdiction of the local division here. Among other things, the applicant is to be prohibited from continuing to pursue the action UPC CFI 208/2024 ACT 24735/2024 pending before the Munich local division and decisions issued in this regard are not to be enforced.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 11 4. 33. [...] does not preclude the jurisdiction of the UPC Agreement or the Munich local division. [...]. With its application for the adoption of interim measures, the applicant [...] asserts claims in tort. 5. 34. Finally, no lis pendens has arisen as a result of the proceedings before the Regional Court of Munich I (case no. 7 O 14547/24). These proceedings concern a different subject matter. Before the Regional Court of Munich I, the threatened infringement of the EP patent EP 1 903 733 and access to national German jurisdiction are at issue. In the present case, there is a threat of infringement of the patent in dispute as a result of the impending prohibition of access to the UPC Agreement. II. 35. The application for interim measures is well-founded pursuant to Art. 62 (1), (2) UPCA in conjunction with Rule 211 (1), (2), (3) RoP. It is highly probable that the applicant is entitled to initiate the proceedings and that its rights under the patent in suit are infringed. The balancing of interests to be carried out as part of the discretionary decision is in favour of the applicant. 1. 36. The applicant is to be regarded as eligible in accordance with Rule 8 (5) RoP. It is entered in the register as the proprietor of the patent in suit. 2. 37. It is predominantly likely that the applicant's rights with regard to the patent in suit will be infringed. The applicant has substantiated the imminent infringement of its property rights in relation to the patent in suit and other patents through the applications B. and C. filed by the defendant before the US court in the statement of claim dated 31 October 2024 (Annex EIP 4). a. 38. According to Article 47(1) of the EU Charter, any person whose rights or freedoms guaranteed by Union law have been violated has the right to an effective remedy before a tribunal. Art. 47 para. 2 of the EU Charter gives everyone the right to have their case heard by an independent and impartial tribunal previously established by law, in a fair hearing, in open court and within a reasonable time.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 12 is heard within a reasonable period of time. Art. 47 of the EU Charter therefore guarantees a general right to justice at European level, i.e. access to justice. According to Art. 17 para. 2 of the EU Charter, intellectual property is in any case property-like rights that must be protected under the Charter. Consequently, Art. 47 (1) and (2) of the EU Charter also protect a person's access to the UPC Agreement for the purpose of asserting an (alleged) unlawful use of a patent. b. 39. Under German law, which in the present case pursuant to Art. 24 (1) e) UPCA, Art. 2 (1), 19 (4) GG grant the general right to the protection of justice. §§ Sections 823 (1), 1004 (analogous) BGB provide a substantive legal basis for the protection of property, which can only be enforced by means of the constitutionally protected rule of law principle just described. c. 40. The ASI and AEI requested by the respondent in the application of 31 October 2024 (Annex EIP 4) in the US proceedings with applications B. and C. constitute, when ordered, a comprehensive prohibition on litigation before the UPC Agreement and a comprehensive prohibition on the enforcement of UPC Agreement decisions. Such prohibitions violate the previously discussed rights to the protection of justice; they are unauthorised interferences with the applicant's rights, which are in any case similar to property rights. d. 41. Applications B. and C. of the application of 31 October 2024 (Annex EIP 4) also relate to the proceedings UPC CFI 208/2024 ACT 24735/2024 and proceedings before the UPC Agreement insofar as they are asserted before a German local division. This is not expressly stated the wording of applications B. and C., which only to "proceedings against [...] in Germany". At first glance, this could be understood to mean that (only) proceedings before the national courts or the German jurisdiction are to be covered, but not proceedings before the UPC Agreement, which is a common, uniform European court of the Contracting Member States. Even though the UPC Agreement has a decentralised structure and various chambers been established at different locations in contracting member states, there is no "German UPC" or "UPC in Germany". The local divisions of the UPC Agreement established in Germany are also not part of the German jurisdiction. The fact that applications B. and C. of the statement of claim dated 31 October 2024 (Annex EIP 4) only concern the proceedings before the Munich I Regional Court could also be supported by the fact that the defendant refers to 20 February 2025 as the decision date of the "German courts" in the statement of claim.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 13 42. Nevertheless, on the basis of the objective horizon of the recipient, it seems likely that the defendant also intends to cover the UPC CFI 208/2024 ACT 24735/2024 proceedings and proceedings before the UPC Agreement with the chosen wording of the application. The patent in dispute is expressly mentioned in the statement of claim of 31 October 2024 (Annex EIP 4, para. 158). However, the patent in suit is only asserted before the Munich local division in proceedings UPC CFI 208/2024 ACT 24735/2024. The respondent also states with regard to the petitioner's actions "In April/May of 2024, Avago Sales sued [...] in the Unified Patent Court ("UPC") in Germany, and in German courts, for infringement" (Annex EIP 4, para. 73) and "Avago Sales inappropriately sued [...] in the UPC despite Realtek's valid licence" (Annex EIP 4, para. 75). No further differentiation is then made between the various patents sued for and/or the jurisdictions. In the acceleration request of 7 November 2024, the patent in dispute is also expressly mentioned (Annex EIP 6, para. 15) and the applicant's actions are mentioned in the same way as in the statement of claim (Annex EIP 6, paras. 32, 41). No further differentiation is made in this application between the patent which is the subject of the proceedings before the Munich I Regional Court and the patent in dispute. Since the patent in suit is only in force in Germany, which is why the applicant in the aforementioned proceedings before the UPC Agreement is also only challenging (alleged) acts of use in Germany, it is likely that the defendant also intends to cover the proceedings UPC CFI 208/2024 ACT 24735/2024 and proceedings before the UPC Agreement with the - as such imprecise - wording in applications B. and C. of the application of 31 October 2024 (Annex EIP 4). In the applications, it has only referred to the place where the courts located or have their seat, but has not made any restriction to a (German) jurisdiction. e. 43. Furthermore, applications B. and C. of the statement of claim dated 31 October 2024 (Annex EIP 4) are directed against infringement claims from all SEPs of the applicant that it intends to file with the UPC Agreement. They are not limited to the patents previously asserted by the applicant before the UPC Agreement (or the German courts). f. 44. However, the aforementioned applications of the defendant are limited to the extent they are only aimed at the enforcement and execution of patent rights in Germany. Irrespective of the imprecision of the wording chosen by the defendant, this makes it clear, taking into account the entire content of the application of 31 October 2024 (Annex EIP 4), that no ASI and/or AEI is requested with regard to proceedings brought by the applicant for (alleged) use of its patents before another court that does not belong to the German jurisdiction or whose location is outside Germany. Since no2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 14 Since no factual circumstances have been presented and made credible and no other circumstances are apparent from which the application for an ASI and/or AEI with regard to other countries can be derived, no risk of first occurrence can be assumed in this respect. The applicant's reference to general life experience is not sufficient in this respect, especially since the applicant herself submits that she currently only asserts rights before German courts and German local divisions of the UPC Agreement. 3. 45. The weighing of the interests of the parties to be carried out in accordance with Art. 62 (2) UPCA and Rule 211 (3) RoP, which must take into account all circumstances of the individual case, is in favour of the applicant in the present case. The issuance of the temporary Order is urgent both in terms of time and objectively. The applicant cannot reasonably be expected to wait until the conclusion of the main proceedings to enforce its claims (see on the requirement of objective urgency or factual necessity: Düsseldorf local division, Order of 31 October 2024, UPC CFI 347/2024 - Valeo Electrification/Magna PT and others; Munich local division, Order of 25 November 2024, UPC CFI 443/2024 - Häfele/Kunststoff KG Nehl). a. 46. The Order of the requested interim measures is urgent in terms of time, R. 209.2 (b) RoP. 47. The urgency required to order interim measures is only lacking if the injured party has been so negligent and hesitant in pursuing its claims that, from an objective point of view, it must be concluded that the injured party is not interested in enforcing its rights quickly, which is why it does not appear appropriate to allow it to seek interim legal protection (cf. also Munich local division, UPC CFI 443/2024, decision of 25 November 2024 - Häfele/Kunststoff KG Nehl; Düsseldorf local division, UPC CFI 347/2024 - Valeo Electrification/Magna PT and others). There is no evidence of negligent and hesitant behaviour in the present case. 48. The period of waiting within the meaning of Rule 211.4 RoP is to be measured from the date on which an applicant has or should have had such knowledge of the infringement as to enable it to make a promising application for interim measures under Rule 206.2 RoP (Court of Appeal, Order of 25 September 2024, UPC CFI 182/2024 - Ortovox Sportartikel/Mammut Sports Group and others). According to the claimant's submission, it received knowledge of the defendant's statement of claim on 1 November 2024 (Annex EIP 4). As this is dated 31 October 2024, the claimant's submission is credible. Based on 01.11.2024 (or the earliest possible date, 31.10.2024), an application for a decree can be made.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 15 provisional measures, which received by the court on 29 November 2024, cannot be regarded as hesitant or negligent. 49. Nothing else follows from the fact that the applicant filed a similar application before the Regional Court of Munich I days earlier, which led to the decision of the Regional Court of Munich I of 22 November 2024 (case no. 7 O 14547/24, Annex EIP 1). Apart from the fact that urgency must be considered separately with regard to each proceeding, the applicant is entitled to review the scope of the decision of the Regional Court of Munich I and to reliably and properly examine the prospects of success of an application for an anti-ASI at the UPC Agreement. This requires a certain period of time, which in any case has not been exceeded in the present case. In this respect, it must be taken into account in particular that there is no (established) case law of the UPC Agreement on this topic; decisions of the UPC Agreement have not been published in this regard. Rather, the present application for the adoption of such measures is - as far as can be seen - the first to be decided by the UPC Agreement. b. 50. The interim measure is also objectively urgent. It is objectively required and necessary. The applicant cannot be referred to proceedings on the merits. 51. Should the US court issue the ASI and/or AEI requested by the Respondent, these would be immediately enforceable in the USA. The applicant could - as a result of the sanctions threatening it in the event of non-compliance with the orders of the US court - be forced in particular to withdraw the action UPC CFI 208/2024 ACT 24735/2024 pending before the Munich local division. In their opinion, the unlawful use of the patent in dispute by [...] and [...] would thus be removed from judicial review by the competent court. The question of whether exhaustion has actually occurred (in Germany) with regard to the components supplied by the defendant to the [...] group could also not be examined. Any rights of the applicant, in particular those to cease and desist the alleged patent infringement in Germany and to establish a liability for damages or the right to damages, could then not be enforced before the Munich local division or the UPC Agreement. Applications B. and C. of the statement of claim dated 31 October 2024 (Annex EIP 4) are also aimed at a permanent prohibition of actions from all SEPs of the applicant before a local division of the UPC Agreement located in Germany and/or against enforcement from decisions of the UPC Agreement, whereby enforcement is to be prohibited even without reference to the defendant's components. If the applicant were to (have to) comply with the ASI and/or AEI , this interference in would in any case affect her2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 16 The applicant believes that the SEP and the patent in dispute could lead to a (material and financial) devaluation of the patent in dispute or the SEP, which could result in considerable damage to the applicant. 52. The Applicant also faces the threat of significant harm it does not comply with the ASI and/or AEI if ordered. The applicant has made a credible case that the US court is likely to impose significant sanctions in the event of a violation of an ordered ASI and/or AEI. The applicant's credible submission shows that US courts have in the past ordered penalties of up to USD 100,000.00 per day of non-compliance in the event of contempt of court, whereby these penalties can double and quadruple from certain points in time of a persistent violation (Affidavit, Annex EIP 6). 53. Since the Order of the ASI and/or the AEI in the US proceedings imminent in view of the Respondent's request for acceleration dated 7 November 2024 (Annex EIP 5), which expressly refers to the hearing date before the Munich I Regional Court and requests a court decision at least before this date, the Applicant cannot be referred to a main action before the UPC Agreement. Under no circumstances could such an action be completed in full by 20 February 2025; a decision by the court in the action before 20 February 2025 is ruled out. A (final) injunction by the court, which could have an impact on the US court, would therefore come too late. However, the rights of the applicant would at best be inadequately protected by an injunction that is only issued after the ASI and/or AEI has issued an Order. c. 54. Furthermore, when weighing up the interests, it cannot be disregarded that the defendant is not involved in the proceedings UPC CFI 208/2024 ACT 24735/2024 and that its statements in the statement of claim of 31 October 2024 (Annex EIP 4) and the acceleration request of 7 November 2024 (Annex EIP 5) regarding any appropriate legal remedies and the scope of any injunction in these proceedings are in any case misleading. 55. According to the information provided by the defendant and the submissions of [...] and [...] in the proceedings UPC CFI 208/2024 ACT 24735/2024, the motor vehicles [...] are equipped with a component of the defendant. Since the objection of exhaustion raised in this respect presupposes in any case that this component makes (at least partial) use of the patent in dispute, a legal interest of the defendant could in principle be assumed, which is why it is open to the defendant to file an application under Rule2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 17 316 RoP to file an application to intervene. An intervener is generally treated as a party pursuant to Rule 317 RoP; the respondent could therefore have countered the applicant's submissions in the proceedings before the UPC Agreement and comprehensively defended its rights. It therefore had and still has an appropriate legal remedy at its disposal. However, the respondent did not make use of this. 56. The applicant bases its action UPC CFI 208/2024 ACT 24735/2024 on use of the patent in suit in Germany. The requested legal consequences, in particular a possible injunction, are limited to the territory of Germany. In view of this, it is not clear why, as the defendant argues in its statement of claim and the request for acceleration, there should be a threat of a sales ban "in Europe and probably also in the United States" if an injunction is issued. In any event, this would not follow directly from the injunction issued. Insofar as the defendant in this context to 20 February 2025, the date of the hearing before the Regional Court of Munich I, this does not change anything. As already explained, in the statement of claim dated 31 October 2024 (Annex EIP 4), the defendant does not clearly differentiate between the proceedings before the Regional Court of Munich I and the proceedings UPC CFI 208/2024 ACT 24735/2024. Rather, it submits that the "German courts" will decide by 20 February 2025, whereby, as already explained, "German courts" also includes the local division Munich. Consequently, cannot be concluded from the date mentioned that the defendant is arguing with regard to the consequences only with a view to the proceedings before the Munich I Regional Court. This is also not the case because, in this view, there would be no submission on the proceedings before the UPC Agreement, although these proceedings are also the basis of applications B. and C. of the statement of claim of 31 October 2024 (Annex EIP 4). d. 57. Finally, the consideration of the potential damage to the parties also speaks in favour of granting the interim measures. 58. If the application is rejected, there is a credible risk that the ASI and/or AEI requested by the defendant will be ordered. This would have the consequences for the applicant already described under b. above. The applicant is therefore threatened with considerable damage. 59. If the interim measures are granted, the defendant is prohibited from pursuing applications B. and C. of its application of 31 October 2024 (Annex EIP 4). This includes, among other things, the withdrawal of these applications. It cannot be ruled out that this could also lead to damage on the part of the defendant. However, the potential damage it could suffer is less serious. The defendant is not involved in the2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 18 enforcement of their rights under the licence agreement. The US proceedings can be continued with regard to the other claims, so that in particular the alleged infringement of the licence agreement concluded between the parties would be reviewed. The interim measures requested by the applicant relate solely to the requested ASI and AEI. In addition, the use of the patent in suit alleged by the applicant will be examined in the proceedings UPC CFI 208/2024 ACT 24735/2024. This includes the objection of exhaustion raised, insofar as this is relevant to the decision. The defendant is also at liberty to support [...] and [...] in their legal defence and/or to file an application to intervene in the proceedings. III. 60. The Order for interim measures requested by the applicant without prior hearing of the respondents appears appropriate and necessary in the present case, R. 206.3, 209.2 (c) RoP in conjunction with R. 212.1 RoP. 61. The applicant has made a credible case that without an ex parte Order it is likely suffer irreparable harm due to the delay associated with the involvement of the other party. The defendant is domiciled in Taiwan. In any case, service of the application for interim measures would take such a period of time that, in view of the defendant's request for acceleration in the US proceedings (Annex EIP 5), it is likely that a decision on the application for interim measures could only be made after a decision by the US court and any order by the ASI and/or AEI. 62. As a result of the Respondent's request for acceleration dated 7 November 2024 (Annex EIP 5) and the fact alleged by the Applicant that the application dated 31 October 2024 (Annex EIP 2) was the only "correspondence" between the parties on this matter, and that the Applicant was therefore "surprised" by the B. and C. applications, it is also likely that the Respondent itself would immediately take interim measures, a so-called Temporary Restraining Order. The US proceedings could therefore be accelerated even further by shortening the deadlines (see Affidavit Exhibit EIP3). Hearing the defendant would then lead to the protection of the applicant's rights asserted here being curtailed or even cancelled out. 63. In view this and the fact that the defendant's statement of claim dated 31 October 2024 (Annex EIP 2) and the request for acceleration dated 7 November 2024 (Annex EIP 5) were attached to the application for interim measures as annexes, the defendant's legal position and argumentation with regard to an ASI2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 19 and/or AEI can therefore be taken into account by the court, it appears appropriate in the present case to exceptionally refrain from a prior hearing of the defendant. IV. 64. Pursuant to Rule 211.5 RoP, the court must order the provision of a security if the Order for interim measures - as here - is issued without a prior hearing of the defendant. 65. Special circumstances that could exceptionally speak against such an Order in the present case are neither presented nor apparent. In particular, it cannot be established on the basis of the submitted and credible facts that any damage to the defendant is excluded. Insofar as the applicant argues that the Order to provide security would delay the effectiveness of the requested measure, this cannot be accepted. The delays caused by internal processes at the applicant, which it claims, are within its own control and for which it is responsible. The reference to the alleged time lapses when depositing the security does not hold water either. The deposit of a security pursuant to Rule 352 RoP can be made directly with the UPC Agreement. The UPC Agreement has set up a bank account for this purpose. The account details are published on the UPC Agreement's website 66. The security is intended to cover the costs of the proceedings, other costs arising from the enforcement and possible compensation for damages incurred or likely to be incurred, Rule 352.1 RoP. As it is difficult to estimate the amount of possible enforcement damages at the time an Order is issued for the local division, the amount of the security set is generally based on the amount in dispute. Even if the amount in dispute does not necessarily correspond to the risk of damage, it does provide an indication of the economic importance the applicant attaches to the matter. The applicant has been made aware of this, but has not made any further submissions regarding the specific amount of the security. 67. As long as this security has not been provided, the Order is not enforceable. The imposition of periodic penalty payments (Art. 82 (4) UPCA, Rule 354.4 RoP) can only be considered for infringements in which the security has already been provided and the defendant concerned has been demonstrably informed of the provision of the security in a formalised form. V.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 20 68. A basic decision on costs is not to be made in the present case. The Rules of Procedure only provide for such a decision in proceedings on the merits (see Rule 118.5 RoP), but not in proceedings for an Order for interim measures. The costs of the summary proceedings are generally to be claimed in the main proceedings. An order for provisional reimbursement of costs possible in summary proceedings (Rule 211.1 (d) RoP) requires a corresponding quantified application. Such an application has not been made in the present case. VI. 69. Alternative service pursuant to Rule 275 (1) RoP cannot be authorised at present. There is currently no discretion in this regard. 70. According to the wording of Rule 275.1 RoP, alternative service requires that a "service in accordance with sections 1 and 2 could not be effected". Alternative service is therefore subsidiary; an (unsuccessful) attempt at service must first have been made in accordance with the relevant rules (Court of Appeal, UPC CoA 69/2024, Order v. 29.07.2024 - NEC/TCL; UPC CFI, Hamburg local division, UPC CFI 169/2024, Order of 18 April 2024 - Daedalus/Xiaomi; Mannheim local division, UPC CFI 219/2023, Order of 08.12.2023 - Panasonic/Xiaomi). Only then does the court have the discretion to allow alternative service. 71. This tiered concept applies not only to orders and/or decisions in an action on the merits, but also to orders in summary proceedings. A differentiation according to the type of proceedings cannot be found in Rule 275.1 RoP or the other provisions of the RoP on the service of orders or decisions. It also does not correspond to the (international) regulations and agreements regarding the service of court orders or decisions. Moreover, the requirement of an attempt at service in accordance with the relevant (international) standards does not depend on whether the attempt at service is likely to be successful or supposedly futile. 72. An (unsuccessful) attempt at service pursuant to Rule 276. 1 i. in conjunction with Rule 274 (a) (iii) RoP has not yet been made. VI. 73. The applicant's request to refrain from setting a time limit with a view to an action on the merits cannot be granted. Rule 213.1 RoP does not allow any discretion.2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 21 ORDER I. The defendant is prohibited, Continue to prosecute the action dated 31 October 2024, initially filed by it in the Court of Chancery of the State of Delaware (USA) (Exhibit EIP 1) (action number 2024- 1127-NAC), and subsequently removed to the U.S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW), particularly with respect to Applications B and C, and also to the extent that it seeks to enjoin the Applicant directly or indirectly, to continue the patent infringement action filed with the Munich local division of the Unified Patent Court dated 1 May 2024 (ACT 24735/2024). May 2024 (ACT 24735/2024) or to expand it to include further claims arising from further SEPs of the applicant or to bring further infringement actions for infringement of SEPs from the applicant's portfolio against the companies of the [...] group claimed in the above- mentioned action, namely [...] and [...], or their affiliated group companies or other companies of the [...] group, before a local division of the UPC Agreement on the territory of the Federal Republic of Germany, both with effect for the Federal Republic of Germany and with effect for other member states of the UPC Agreement ("anti-suit injunction"); and to enforce in the Federal Republic of Germany injunctions issued by the UPC Agreement against the companies of the [...] group, namely [...] and [...], or their affiliated group companies or other companies of the [...] group, against which the above-mentioned action is brought ("Anti-Enforcement Injunction"), whereby this obligation to cease and desist includes - the order granting the applications for an anti-suit injunction and an anti- enforcement injunction dated 31 October 2024, which were initially filed in the Court of Chancery of the State of Delaware (USA) (Exhibit EIP 1) (action number 2024- 1127- NAC), and which were subsequently transferred to the U.S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW).S. District Court of the District of Delaware (action number 1:24-cv-01235-GBW), regardless of which U.S. court they are currently pending in at the time of execution of this decision, shall be withdrawn immediately upon service of this order, - the prohibition to continue these anti-suit injunction and anti-enforcement injunction proceedings, except for the purpose of withdrawing the application,2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 22 - prohibiting the enforcement of the above-mentioned Anti-Suit Injunction and/or Anti- Enforcement Injunction Orders against the applicant in the event that they are issued in the meantime, and - the prohibition to apply for other equivalent measures aimed at directly or indirectly prohibiting the applicant from enforcing its patent rights against companies of the [...] group before a local division of the UPC Agreement on the territory of the Federal Republic of Germany, both with effect for the Federal Republic of Germany and with effect for other UPC Agreement member states. II. In the event of any violation of the Order under section 1, the defendant shall pay the court a (possibly repeated) penalty payment of up to € 100,000.00 for each day of the violation. III. The Order is only enforceable if the applicant has provided security in favour of the defendant in the form of a deposit or bank guarantee in the amount of € 500,000.00. INSTRUCTION TO THE (AUXILIARY) LAW FIRM This Order, together with the Notice of Motion dated 29 November 2024 and the document dated 5 December 2024, together with all annexes pursuant to Rule 276. 1 in conjunction with Rule 274. in conjunction with Rule 274 (a) (iii) RoP to the defendant Realtek Semiconductor Corporation, No. 2 Innovation Road II, Hsinchu Science Park, Hsinchu 300, Taiwan, represented by its CEO Huang, Yung-Fang. NOTE TO THE APPLICANT If the main proceedings are not commenced within a maximum period of 31 calendar days or 20 working days, whichever is the longer, from the date of service on the respective respondent, the court may, on application by the respondent, order that the present Order be cancelled or otherwise cease to have effect (Art. 62(5), 60(8) UPCA, Rule 213.1 RoP). NOTICE TO THE DEFENDANT The respondent may request a review of the Order within 30 days of enforcement of the measure (Art. 62(5), 60(6) UPCA, Rule 212.3, 197.3 RoP).2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 23 INFORMATION ON ENFORCEMENT (ART. 82 UPCA, RULE 352, 354 ROP) Enforcement of the judgement is subject to the provision of security. A certified copy of the enforceable Order shall be issued by the Deputy Registrar on application by the enforcing party, Rule 69 RegR. ORDER DETAILS Procedure number ACT 63549/2024 UPC number UPC CFI 755/2024 Ulrike Voß Presiding judge Ulrike VoßDigitally signed by Ulrike Voß Date: 2024.12.08 12:52:22 +01'00' Dr Daniel Voß Legally qualified judge Daniel Voss Digitally signed by Daniel Voß Date: 2024.12.08 13:41:12 +01'00' Dr Walter Schober Legally qualified judge Walter Schober Digitally signed by Walter Schober Date: 2024.12.08 15:58:03 +01'00' For the Deputy Chancellor Anja Digitally signed by Anja Mittermeier Mittermeier Date: 2024.12.09 09:31:45 +01'00'2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 1 Local division Munich UPC CFI 755/2024 Order of the Court of First Instance of the Unified Patent Court issued on 20 December 2024 APPLICANT Avago Technologies International Sales Pte. Limited, 1 Yishun Avenue 7, Singapore 768923, represented by the management, ibid, represented by: Lawyer Schmidt-Bogatzky, EIP Rechtsanwälte, Breite Straße 2931, 40213 Düsseldorf, Germany. DEFENDANT Realtek Semiconductor Corporation, No. 2 Innovation Road II, Hsinchu Science Park, Hsinchu 300, Taiwan, represented by its CEO Huang, Yung-Fang, ibid. PATENT IN SUIT European patent EP 1 770 912 PANEL / CHAMBER Panel 2 of the Munich local division PARTICIPATING JUDGE This decision was issued by presiding judge Ulrike Voß (rapporteur), legally qualified judge Dr Daniel Voß and legally qualified judge Dr Walter Schober. LANGUAGE OF THE PROCEEDINGS German2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 2 SUBJECT OF THE PROCEEDINGS Corrigendum - Rule 353 RoP ORDER The Order of 9 December 2024 is corrected as follows in accordance with Rule 353 RoP: Margin number 4, sentence 2: "The applicant and the defendant concluded a licence agreement granting the defendant a licence to the applicant's patents, including the patent in dispute, for its [...] products (Annex EIP 4)." is amended as follows: "It and the applicant's legal predecessor, in relation to some patents, concluded a licence agreement granting the respondent a licence for its [...] products to the then patents of the applicant's legal predecessor (Annex EIP 4)." Recital 33, sentence 2: "[...]." is supplemented as follows: "[...]." Recital 59, sentence 6: "The US proceedings can be continued with regard to the remaining claims, so that in particular the alleged infringement of the licence agreement concluded between the parties would be reviewed." as follows (addition emphasised): "The US proceedings can be continued with regard to the remaining claims, so that in particular the alleged breach of the licence agreement concluded between the contracting parties would be reviewed." ORDER DETAILS Order No. ORD 67540/2024 Procedure number ACT 63549/20242024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB 3 UPC number: UPC CFI 755/2024 Procedure application number: App 63549/2024 Ulrike Voß Presiding judge Digitally signed by Ulrike Voß Ulrike Voß Date: 2024.12.20 14:26:06 +01'00' Dr Daniel Voß Legally qualified judge Digitally signed by Daniel Voss Daniel Voss Date: 2024.12.20 15:26:36 +01'00' Dr Walter Schober Legally qualified judge Digitally signed by Walter Schober Walter Schober Date: 2024.12.20 15:17:31 +01'00'2024-12-09 LD Munich UPC CFI 755-2024 ACT 63549-2024 ORD 64861-2024 en-GB

Key Holdings

Art. 32 (1) a), c) UPCA establishes the UPC Agreement's subject-matter jurisdiction to issue interim measures against imminent (foreign) prohibitions on conducting proceedings and/or enforcement.
A foreign prohibition on conducting and/or enforcing proceedings violates the general European right to justice (Art. 47 EU Charter) and German right to justice (Art. 2 para. 1, 19 para. 4 GG), qualifying as unauthorised acts under Section 823 para. 1 BGB.
Special circumstances under Rule 211.5 RoP cannot be justified solely by a supposedly long duration of procuring security.
Rule 213.1 RoP does not confer any discretion on the court regarding the time limit for commencing main proceedings.

UPC CFI 755/2024 – Avago Technologies International Sales Pte. Limited v Realtek Semiconductor Corporation

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