Law applied:
Art. 2 para. 1, Art. 14 Basic Law (GG);
Sections 890, 935, 940 Code of Civil Procedure (ZPO)
Summary of the Court:
1. Free access to the state courts and the protection of the SEP holder's property require, as a matter of constitutional law, that it be granted (preliminary) legal protection against a foreign ban on litigation.
2. This obligation exists within the scope of what is objectively necessary, i.e. under the circumstances of the case, at a time and to the extent that this is necessary to enable the SEP holder to effectively enforce its prohibition rights.
3. An objective necessity is not already established by the fact that the infringement defendant has the merely abstract possibility to make use of the means of an anti-suit-injunction, if at the time of the decision there are no sufficient indications that it will in deed make use of this possibility.
4. In principle, these requirements also apply if a limited protective order is sought which is intended to oblige the infringing defendant to notify the SEP holder of its intention prior to a request for the issuance of an anti-suit injunction.
Higher Regional Court Düsseldorf, Judgment of February 7, 2022 – I-2 U 27/21
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