An alleged patent infringer who files an application for the issuance of an anti-suit injunction (ASI), or threatens to do so, cannot, as a rule, be regarded as sufficiently willing to obtain a license within the meaning of the case law of the Court of Justice of the European Union and the Federal Court of Justice.
- Previous applications for the issuance of an ASI were argued on the grounds of protecting an action on the merits in the issuing state. This action on the merits in turn was based on the argument that the patent user is willing to take a license.
- However, if the patent user is really willing to take a license, that user will refrain from further unlawful interference with the patent owner’s rights.
- Since the German court does not examine the FRAND offer of the patent owner due to the lack of willingness of the defendant, there is no conflict with the royalty setting by the Chinese court.