By decision of 11 January 2023, the District Court of The Hague (the Court) rejected Nokia’s claim for a preliminary injunction against Oleading B.V. and Reflection Investment B.V. (Oppo Distributors) regarding the alleged infringement of Standard Essential Patents (SEPs). The Court denied the PI based on the balance of interests, which is reminiscent of its earlier decision in Sisvel v. Xiaomi.

The Oppo Distributors argue that this type of case is not suitable to be decided in preliminary injunction (PI) proceeding, due to the complexity of the FRAND discussion in particular. They expressly referred to the Dutch Sisvel v. Xiaomi judgments, in which the Provisions Judge at first instance and the Court of Appeal had rejected the preliminary injunction since the balance of interest favoured the implementer. Nokia argues that the present case differs in relevant aspects from Sisvel v. Xiaomi, so that the balance of interest should fall in its favour. Most significantly, Nokia points out that the District Court of The Hague has already ruled in final relief proceedings that the SEPs are valid and have been infringed, and that the authoritative German Regional Court of Mannheim has already rejected Oppo’s FRAND defence. The Court considers that even if it were to rule in line with the German court on validity, infringement and the FRAND defence, the parties still contest a large number of facts and principles concerning the valuation of the FRAND license. From this the Court concludes that there is a good chance that a judge in final relief proceedings will form a different opinion on one or more of these points

As for the other circumstances to be taken into consideration when assessing the balance of interests, the Court aligns its judgment with the prior Sisvel v. Xiaomi decision. The damage suffered by Nokia is limited and can relatively easily be compensated by awarding damages. This is in sharp contrast with the consequences for the Oppo distributors of a granting of the PI, which would either force them to accept a worldwide licence agreement, or force them to shut down their Dutch business. The consequences of this are much more difficult to retrospectively translate to damages. In addition, the Court considers that the Oppo distributers have sufficiently accommodated Nokia’s interests by providing security for the payment of licence fees for the use of the Nokia patents.

There are multiple differences between the circumstances of this case and those of Sisvel v. Xiaomi. In the current case, final relief decisions were already available, Nokia was not a non-practising entity, and the relevant SEPs were not expiring soon. These and other differences (and arguments) were not enough for the Court to allow for a shift in the balance of interests in favour of Nokia. This judgment therefore confirms the earlier rulings in the Sisvel v Xiaomi case and shows that, although not impossible, it will not be easy to successfully obtain a PI based on infringement of a SEP.

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