Nokia v Continental (OLG München, 6 U 5042/19, 2019)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Munich Higher Regional Court upholds an interim injunction prohibiting the parent company of an automotive supplier group from applying, or having its US subsidiary apply, to a United States court for an anti-suit injunction designed to block ten SEP infringement actions pending in Germany. It holds that such an application would interfere with the patents as property-like rights protected by sections 823(1) and 1004 of the Civil Code (para 55), that the threat persists despite withdrawal of a first application (para 56) and that the parent is liable as a joint tortfeasor (paras 77 to 82). The judgment gives holders of German patents a preventive tool against attempts to paralyse their actions through a foreign court.

Facts and procedure

The applicants belong to the “N.” group, based in Finland; the respondent is the parent of the “C.” group, based in Hanover (para 1); the text at times uses the names Nokia, Continental and Daimler (paras 55, 60 and 79). The applicants had brought SEP infringement actions in Germany against a car manufacturer, “D. AG” (para 6). On 12 June 2019 the US subsidiary C. Automotive Systems, Inc. (CAS) applied to the United States District Court for the Northern District of California (5:19-cv-02520-LHK) to restrain the continuation of those German actions (paras 2 and 6). Seised on 9 July 2019, the Munich I Regional Court granted the order sought by judgment of 30 August 2019 (21 O 9512/19). CAS then withdrew its application and filed a new one on 8 and 9 October 2019, from which the German actions are excluded only provisionally (paras 35 and 56). The respondent appealed.

The applicable law

German procedural law has no power to restrain a party from suing comparable to that of Anglo-American courts, but a duty to refrain may arise in tort (para 54). International jurisdiction follows from the respondent’s German seat (para 46) and the order also covers equivalent measures (paras 47 and 48).

Question

May the holder of German patents obtain an interim order prohibiting an application for an anti-suit injunction before a US court intended to paralyse its infringement actions in Germany?

Decision

Yes. The appeal is dismissed, with the operative part adapted to the amended request. An application for an anti-suit injunction would be an imminent interference with an absolute right, the patents being property-like rights, since the applicants would be prevented from exercising their exclusive right against D. AG; a preventive injunction requires no damage (para 55). The threat of a first infringement persists, as the new application of October 2019 shows (para 56).

Unlike the first instance court, the Senate accepts that the order deprives CAS of an admissible motion in the US proceedings (para 60). It leaves open whether self-defence under section 227 BGB applies (paras 64 to 66) and weighs the interests: the applicants’ property-like position outweighs the respondent’s general freedom of action (Article 2(1) of the Basic Law), the FRAND defence being available in the German actions (para 69); US procedural safeguards do not protect the rights at stake in those actions (para 70); the order is a defensive response made imperative by a possible anti-suit injunction (para 72).

Public international law is not infringed (para 73). EU law does not apply in the absence of an intra-EU cross-border situation, and BGH III ZR 42/19 does not extend to third states such as the United States (paras 74 and 75). The parent is a joint tortfeasor under section 830 BGB; having failed to meet its secondary burden of substantiation on the group’s decision making, the indications put forward suffice (paras 77 to 82).

Key points for practice

• A mere application abroad for an anti-suit injunction targeting German actions may be prohibited preventively under sections 823(1) and 1004 BGB (para 55).
• Withdrawal of a foreign application does not remove the threat where the opponent repeats the step (para 56).
• The parent company may be targeted as a joint tortfeasor where the decision stems from the group (paras 77 to 82).
• Practical point: a SEP holder suing a customer in Germany should monitor US proceedings brought by suppliers and act quickly, since the order may reach the German parent and any equivalent measure, including a Temporary Restraining Order (paras 46 to 48).

Provisions applied

National law

sections 823(1), 830(1), 1004(1) and 227 BGB; sections 9 and 139 PatG; Articles 2(1) and 25 of the Basic Law; sections 253, 513 and 97 ZPO

Case law cited

BGH, 13 March 1979, VI ZR 177/77; BVerfG, 25 February 1987, 1 BvR 1086/85; BGH, 17 October 2019, III ZR 42/19; BGH, GRUR 2005, 882 (Unberechtigte Schutzrechtsverwarnung I); BGH, GRUR 2016, 1031 (Wärmetauscher); OLG Düsseldorf, 10 January 1996, 3 VA 11/95; BVerfG, NJW 2016, 1295

Related decisions

• LG Mannheim, 2 O 34/19, 18 August 2020, one of the German actions protected by the order (operative part).
• LG Düsseldorf, 4c O 17/19, 26 November 2020, another German action listed in the operative part.

Prepared by Dhenne Avocats from the text of the decision (gesetze-bayern.de), consulted on 11 October 2026. Only the official text is authoritative.