United States District Court, D. Delaware
has filed a Motion for Preliminary Injunctive Relief Limiting
Arbitration that Defendants have commenced in Sweden. (D.I.
69). The Parties have fully briefed the issues. (D.I . 70,
77, 85). For the reasons set out below, Plaintiffs motion is
argues that it is entitled to injunctive relief based on an
order that I issued on March 28, 2018 ("the
Order"). In the Order, I denied Defendants' motion
to compel arbitration of Plaintiff s infringement claims
related to U.S. Patent No. 8, 494, 090 ('"090
Patent") under the Federal Arbitration Act. (D.I. 70 at
1; see D.I. 48). I considered certain provisions of
a 2003 patent licensing agreement ("PLA") to
resolve that motion. For that purpose, I interpreted relevant
provisions of the PLA under Delaware law. (D.I. 48 at 4).
However, I noted that the PLA contains a choice of law
provision requiring interpretation of the contract under
Swedish law. (Id.; D.I. 13, Exh. 1 at § 12.1).
This was meant to clarify that my Delaware law interpretation
of the relevant provisions was for the limited purpose of
resolving Defendants' motion to compel arbitration. (D.I.
48 at 4 (noting that the Parties had not briefed the choice
of law provision and stating, "I will therefore apply
Delaware contract law" to resolve the motion)). That is,
the Order did not announce a final, binding interpretation of
the relevant sections of the PL A. Rather, my interpretation
was limited to deciding Defendants' motion to compel
arbitration-the issue that the parties had briefed.
briefing on the present motion relies heavily on my Delaware
law interpretation of the PLA. (See D.I. 70 at
10-11, 19). Based on its reading of the Order, Plaintiff
argues that it meets the requirements for a preliminary
injunction or, alternatively, that I should issue an
injunction to preserve my jurisdiction under the All Writs
Act, 28 U.S.C. § 1651. (Id. at 9, 18).
Plaintiffs reliance on the Order is misplaced.
the Order is properly considered, Plaintiff has not
established that it is entitled to an injunction.
[T]o obtain a preliminary injunction the moving party must
show as a prerequisite "(1) a reasonable probability of
eventual success in the litigation, and (2) that it will be
irreparably injured .. . if relief is not granted. ... [In
addition, ] the district court, in considering whether to
grant a preliminary injunction, should take into account,
when they are relevant, (3) the possibility of harm to other
interested persons from the grant or denial of the
injunction, and (4) the public interest."
Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d
Cir. 2017) (alterations in original) (quoting Del. River
Port Auth. v. Transamerican Trailer Transport, Inc., 501
F.2d 917, 919-20 (3d Cir. 1974)). Plaintiff cannot meet this
standard. The entirety of its "reasonable probability of
eventual success" analysis rests on the Order and my
construction of the PLA contained therein. (See D.I.
70 at 10-11). The Order did not announce a binding
interpretation of the PLA. Therefore, it cannot establish a
reasonable probability of success. Without any other analysis
regarding its likelihood of success on this issue, Plaintiffs
argument for a preliminary injunction necessarily fails.
Thus, I will not grant Plaintiff a preliminary injunction.
actions since the Order issued do not warrant the invocation
of the All Writs Act. Under the Act, "[t]he Supreme
Court and all courts established by Act of Congress may issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law." 28 U.S.C. § 1651(a). "The All Writs Act
confers on courts extraordinary powers that are firmly
circumscribed." Grider v. Keystone Health Plan Cent,
Inc., 500 F.3d 322, 328 (3d Cir. 2007) (quotation marks
omitted). An injunction under the Act is not appropriate
simply because another forum may reach judgment on an issue
first. Id. at 329-30. The action "must
interfere with the federal court's own path to
judgment." In re Diet Drugs, 282 F.3d 220, 234
(3d Cir. 2002). Arbitration on issues other than the
infringement of the '090 Patent will not divest me of
jurisdiction to resolve this case. Accordingly, after I
issued my Order, Defendants were free to seek arbitration
under the PL A on issues outside the scope of the question I
had resolved. From the briefing, it appears this is exactly
what Defendants have done. Regardless of Defendants' pending
arbitration action, I will be able to adjudicate Plaintiffs
infringement claim. The fact that a Swedish arbiter's
decision may ultimately preclude my determining certain
issues does not amount to a divestiture of my jurisdiction to
resolve the allegations at the heart of this case. Thus,
Defendant's actions, which appear to be consistent with
the Order, do not warrant an injunction.
concerns also dictate against my enjoining the Swedish
arbitration. The Third Circuit's approach to anti-suit
injunctions rarely allows enjoining a foreign proceeding.
Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 161 (3d
Cir. 2001). "[P]arallel proceedings are ordinarily
permitted to proceed simultaneously, at least until one has
reached the stage where its ruling becomes res
judicata.” Id. at 157. A court may impose an
anti-suit injunction in rare circumstances to protect its
jurisdiction or to further an important public policy.
Bro-Tech Corp. v. Thermax, Inc., 2007 WL 2597618, at
*3 (E.D. Pa. Sept. 4, 2007). "Vexatiousness, harassment,
or inconvenience to the parties are usually insufficient
grounds upon which a court may enjoin a foreign parallel
proceeding." Id. Comity concerns stand at the
forefront of the analysis. Id. Furthermore,
"there likely exists a requirement that the action in
the enjoining court will be dispositive of the enjoined
suit." TQ Delta, LLC v. ZyXEL Commc'ns,
Inc., 2018 WL 2932728, at *3 (D. Del. June 12, 2018).
Here, Plaintiff argues that I should issue an injunction to
protect my jurisdiction over this case and to further the
public policy of protecting patent rights. (D.I. 70 at
17-18). As I explain more fully above, the Swedish
arbitration will not divest me of the ability to resolve
Plaintiffs infringement claims. Moreover, Plaintiff fails to
explain how the Swedish arbitration possibly impedes the
public policy of protecting patent rights. I have no reason
to believe the Swedish arbiters will ignore Plaintiffs patent
rights in resolving the case. Because the arbitration does
not threaten my jurisdiction or public policy, the
circumstances of this case are not akin to the rare instances
where an anti-suit injunction against a foreign proceeding is
appropriate. Thus, comity concerns, even if they are
diminished in the context of arbitration,  support denying
the request to enjoin the Swedish arbitration.
Plaintiff is not entitled to an injunction and its Motion for
Preliminary Injunctive Relief Limiting Arbitration (D.I. 69)
 The briefing indicates that Defendants
seek arbitration on several issues:
(a) whether Nokia Corp. and its affiliates have a
worldwide and royalty free license under the PLA for the
lifetime of the arbitration patents (among other patents not
asserted in this litigation); (b) whether Nokia Corp. is
entitled to freely exercise its rights to licenses under the
PLA through any Nokia affiliate, including defendant Nokia of
America; (c) whether BlackBerry materially prejudiced the
rights granted to Nokia Corp. and its affiliates; (d) whether
BlackBerry breached the PLA by commencing this litigation;
and (e) whether BlackBerry is liable to compensate Nokia
Corp. and its affiliates for any and all costs, losses, and
expenses suffered or incurred in defending against this
(D.I. 77 at 5-6). Notably, Defendants do not seek an
arbiter's determination compelling arbitration of
Plaintiff s infringement claims related to U.S. ...