April 2018, Antony Craggs reports: In Unwired Planet v Huawei, the Patents Court of England & Wales held that it was able to determine the terms of a worldwide FRAND licence and, if the prospective licensee declined to take such a licence, that it would grant an injunction in the UK. Recently, Chinese courts have also set FRAND rates and issued anti-suit injunctions in advance. The Issue of Anti-Suit Injunction & Anti-Enforcement Injunction . Anti-anti-suit injunctions create ‘risky’ FRAND playing fields Industry sources say the friction in Ericsson v Samsung illustrates a rising trend of unhealthy FRAND negotiation tactics By Charlotte Kilpatrick January 21 2021 To access our in-house intelligence please request a trial here. case granted an anti-enforcement injunction against an anti-suit injunction obtained in a foreign jurisdiction.Xiaomi on June 9, 2020, filed an SEP royalty rate-setting suit in the Wuhan Intermediate People’s Court (“Wuhan Court”) to determine global FRAND rates to obtain … Anti-anti-suit injunctions: Remedy against a remedy February 15, 2021 Surbhit Shrivastava 0 Introduction In order to understand what an anti-anti-suit injunction is, it is necessary that we first discuss about anti-suit injunctions. But as the saying goes, “Diamond cuts diamond”, anti-anti-suit injunctions operate against the injustice and act as an instrument that balances the scenario and ensures status quo till the matter is … On 4 th of August 2020, Xiaomi filed an application before the Wuhan Court, seeking an anti-suit injunction (ASI) against the proceedings in India. The Delhi High Court in the Interdigital Technology Corporation & Ors. In response, courts in other countries – namely Germany and France – have begun to issue anti-anti-suit injunctions (AASIs) to prevent parties from seeking ASIs that would hinder their own proceedings. Such petition against an Anti-Suit Injunction is commonly referred to as an “Anti-Anti-Suit Injunction”. In its opinion, anti-suit injunctions could not be illegal under customary public international law because the Anglo-Saxon courts had issued them for years. In other words, bad practice creates bad customary law. The Munich Court of Appeal found an easier and more formal excuse. The application was compromised by way of an amendment to ZTE's Chinese compliant and the provision of undertakings from ZTE and Conversant (the latter relating to Conversant's bringing of proceedings in Germany). The Munich Regional Court in particular reacted to this with anti-anti-suit injunctions. The goal of an anti-anti-suit injunction is to get a court to stop the infringement proceedings of a company in an anti-suit injunction in another country. Anti-suit injunctions are merely another incentive for parties to settle due to the increased costs they bring and it would be better for parties to come to a favourable solution more quickly. Jointly organized by the Centre for Financial Regulation and Economic Development (CFRED) at CUHK LAW and the Center for Law and Intellectual Property at Texas A&M University School of Law, this workshop brings together intellectual property and other legal experts to examine the emergence of anti-suit injunctions in patent litigation in China. Although offering obvious advantages over litigation before national courts, investors are not immune from the risk of proceedings becoming destabilized by external factors. Beginning in 2019 when Nokia won an anti-anti-suit injunction against Daimler in Germany, there has been a wave of counter injunctions from Wuhan in China all the way to California. According to InterDigital, Xiaomi had secretly filed a complaint in Wuhan in June 2020 requiring the court to set FRAND terms for a global licence for InterDigital’s 3G and 4G SEPs. Anti-suit injunctions and the Xiaomi v InterDigital dispute. On 7 April the European Parliament submitted two questions to the European Commission relating to anti-suit injunctions (“ASIs”) issued by Chinese courts in cases involving standard essential patents (“SEPs”). After the negotiations between the parties about a FRAND licence on InterDigital’s SEP portfolio failed, Xiaomi applied for an anti-suit injunction (ASI) in Wuhan, which was issued on 23 September 2020, prohibiting InterDigital from further proceedings against Xiaomi based on InterDigital’s SEP in foreign countries. It has become common practice in recent years for implementers and right holders to engage in global litigation that is centred on standard essential patents (SEPs). When a court issues an anti-suit injunction, it is essentially saying that it will be the only court to decide the outcome of the case at hand. Joff Wild. In that context, questions also arise regarding the impact of anti-suit injunctions by implementers, and anti-anti-suit injunctions by SEP owners. Anti-suit injunction: German Interim injunction against Chinese ASI. Decisions of courts in UK, Germany, France and the Netherlands on FRAND royalties, anti-suit injunctions, anti-anti-suit injunctions, declarations of essentiality and other SEP issues are often thoroughly commented upon. As such, forum shopping will be the prevailing practice. In the context of FRAND disputes, anti-suit injunctions have mostly been provided by courts in the US and the UK. Anti - Suit Injunctions? But how does the system work? Anti-suit injunctions in SEP litigation In SEP litigation, including infringement proceedings and determinations of fair, reasonable and non-discriminatory (FRAND) licensing terms, issues relating to overlapping national jurisdiction are increasingly common. Anti-suit injunctions and FRAND defence In a recent decision (docket no. Pavan Kumar. Barring appeal, parties are stuck with the anti-suit injunction. FRAND licensing commitment may issue an anti-suit injunction to prevent the SEP holder from bringing foreign patent infringement claims (including injunctions against the sale of infringing products) until the FRAND licensing dispute has been resolved in the issuing jurisdiction. Wuhan, China is currently a destination jurisdiction for anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI). Verhoeven pleaded with the court to leave in place an anti-suit injunction entered by Judge ... precedent supported Samsung's argument that injunctions are inconsistent with the FRAND commitment. On Friday, Nokia obtained an additional anti-antisuit-injunction injunction ("AAII") against Continental AG, the German parent company of the automotive supplier group, but meanwhile it has become known that the prior AAII, entered in July against Michigan-based Continental Automotive Systems, Inc., was finally served under the Hague Convention "[o]n or … The ramp-up occurred around the time of a conference that I attended in China in mid-January of… 7 Recently, however, the practice of issuing anti-suit injunctions has also been adopted in China. 7 Recently, however, the practice of issuing anti-suit injunctions has also been adopted in China. ... Apple … Xiaomi v. In a recent decision (docket no. SEP-related case law in Europe is regularly reported in this blog, and other European platforms. The Munich Regional Court has ruled on a German injunction application of an US applicant against a Chinese Anti-Suit Injunction (ASI) – Anti-suit injunction as worldwide weapon in FRAND and SEP litigation, including “increases” to AASI, AAASI and AAAASI: Conversant filed an appeal on 18 November 2019 to the first-instance decision at the Chinese … Cal. standard-essential patents (SEP) mainly in the field of telecommunications. Ericsson Wins Anti-Interference Injunction Against Samsung in Texas FRAND Case. case granted an anti-enforcement injunction against an anti-suit injunction obtained in a foreign jurisdiction.Xiaomi on June 9, 2020, filed an SEP royalty rate-setting suit in the Wuhan Intermediate People’s Court (“Wuhan Court”) to determine global FRAND rates to obtain … ... Apple … Our panel will discuss: • The factors that lead U.S. courts to grant anti-suit injunctions, such as in Huawei v. Samsung (N.D. California), and … Unless courts come together and agree to a Lugano Convention–style mutual recognition of FRAND judgments, anti-suit injunctions will be around for a while. 1Examples include the global FRAND litigation Apple v Qualcomm (US - S.D. The prospect of risking an injunction and a sales stop in Germany quickly had an effect on global FRAND disputes. The Korean giant’s Christmas day anti-suit injunction from a Chinese court receives a swift response from Judge Gilstrap in the Eastern District of Texas. If anti-suit injunctions accelerate settlements then this could be seen as a positive side effect, but still is not the preferable path to take. Grants of anti-enforcement suit and other subsequent reliefs have set a new tone of precedents. Anti-anti-suit injunctions are as bad in law as anti-suit injunctions are. 22. #128 When Will It Be the End of Global Anti-Suit Injunction Wars? Part III explores the possibility that these trends are leading to a global race to the bottom among jurisdictions and a race to the courthouse among litigants. 1Examples include the global FRAND litigation Apple v Qualcomm (US - S.D. U.S. court decisions have issued injunctions relating to proceedings in Germany, the U.K., China and other countries. Tune in now to watch LawWiser video on Anti-suit Injunction and Anti-enforcement Injunction with our Consulting Editor Sania Husaini and Zafar Khurshid, Senior Partner, TKC Partners.In this video, we try to explore and understand these not so commonly used concepts. According to InterDigital, Xiaomi had secretly filed a complaint in Wuhan in June 2020 requiring the court to set FRAND terms for a global licence for InterDigital’s 3G and 4G SEPs. Such petition against an Anti-Suit Injunction is commonly referred to as an “Anti-Anti-Suit Injunction”. The anti-anti-suit injunction is a response to the practice of some courts, notably in the U.S., to grant anti-suit injunctions which bar a party from bringing proceedings in other jurisdictions. The recent anti-suit injunction issued against InterDigital in its SEP litigation with Xiaomi is a somewhat predictable reaction to the recent UK Supreme Court decision against Huawei and ZTE. Parties who have entered into an agreement to refer disputes to arbitration can enforce that agreement by an anti-suit injunction in the same way as one enforces an exclusive jurisdiction clause. Lenovo raised a series of objections against this petition. The availability of anti-anti-suit injunctions to be rendered by the Munich courts was established in Nokia v Continental (6 u 5042/19 and 6 U 5689/19), a Munich Court of Appeals judgment of 12 December 2019. Anti-suit injunctions and FRAND defence In a recent decision (docket no. One of the central arguments there was that the UK courts were trying to set themselves up as the international arbiter of FRAND disputes. But an ASI battle between Interdigital and Xiaomi came about after failed licensing negotiations between the companies. Print article. In response to Ericsson’s motion filed on December 28, 2020, the United States Federal District Court for the Eastern District of Texas issued a temporary restraining orderagainst Samsung in th… For background to theincrease in overlapping national jurisdiction in SEP litigation,see the article 'Chinese Courts Confirm Jurisdiction to SetGlobal The recent anti-suit injunction issued against InterDigital in its SEP litigation with Xiaomi is a somewhat predictable reaction to the recent UK … As one of us has recently observed (here and here), courts in the U.S. and UK adjudicating cases involving standards-essential patents and FRAND licensing commitments have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). It is reasonable to assume that both parties were strongly influenced by the recent anti-suit injunction decisions as a defence in SEP and FRAND disputes. First anti-suit injunctions – and then on Christmas Eve, a Chinese anti-anti-anti-suit injunction against Ericsson. On that day, the Wuhan Intermediate Court of China set a new standard in global SEP litigation. According to JUVE Patent’s information, it was a fourfold anti-suit injunction. The article traces back the origins of anti-suit injunctions in the United Kingdom and discusses the situations where they can be granted. Indeed, as far as I am aware U.S. courts have only granted anti-suit injunctions in global FRAND-disputes on two occasions: Microsoft Corp. v. Motorola, Inc. and TCL v.Ericsson [a helpful discussion of these cases by Contreras and Eixenberger can be found here].In the first case, German infringement suits were initiated well after the US court was seized to set a global … Much like Beckett’s Vladimir and Estragon, desperately waiting for Godot without success, the citizens of Lebanon are protagonists of a living theater of the absurd which their country has become, desperately waiting for legal, institutional and social reforms to no avail. ANTI-SUIT INJUNCTIONS. As one of us has recently observed (here and here), courts in the U.S. and UK adjudicating cases involving standards-essential patents and FRAND licensing commitments have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). First Instance Proceedings. Conversant applied for an anti-suit injunction to restrain ZTE's pursuit of Chinese FRAND proceedings. The court has scheduled oral hearings in these proceedings for February and March. 2 ASIs and AASIs are so troubling as it directly touches on the issue of a state’s sovereignty, in the eyes of many governments and judges. Parties rarely filed anti-suit injunctions in Germany. The reason behind this behaviour apparently is that the US courts interpret the conditions for FRAND licensing more favourably for the licensee than their European counterparts. Paul luGard* Baker Botts Abstract As the dissemination of 5G and other standard essential technologies becomes more important and traditional intellectual property licensing models are increasingly criticised, the importance of competition law principles in SEP/FRAND disputes is also likely to increase. Apple has also asked the Eastern District of Texas judge to set fair, reasonable and nondiscriminatory, or FRAND, rates for those patents. 51 the district court based its decision on the assumption that both parties indicated their desire that the californian action should result in a ‘global … 29 December 2020. Anti-suit injunctions and FRAND defence. In SEP litigation, including infringement proceedings anddeterminations of fair, reasonable and non-discriminatory (FRAND)licensing terms, issues relating to overlapping nationaljurisdiction are increasingly common. Although the first AASI was issued in a Wuhan maritime case in July 2017, the IP judiciary started to more seriously consider ASI’s. The article examines anti-suit injunctions and their use in patent disputes. As reported in November 2019, the Nanjing Intermediate Court made a first-instance decision between Huawei and Conversant in a standard essential patent (SEP) royalty dispute in China.This article provides two recent updates. For example, in the 2013 Realtek Semiconductor Corp. v. LSI Corp. decision, a Northern District of California court was confronted with cross-motions requesting, on one hand, an anti-suit injunction against a co-pending investigation at the U.S. International Trade Commission and, on the other, a stay of the district court The appeal court considered it relevant that the duration of the anti-suit injunction could potentially be very long in light of the possible length of U.S. proceedings, whereas IPCom's patent was set to expire on 15 February 2020. The anti-suit injunction would thus have effectively amounted to a deprivation of IPCom's property [par. 58]. Read this article – and more – for a 30 day period. injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). Last year, the SPC issued its Guiding Opinions on Strengthening… June 2021. Apple has also asked the Eastern District of Texas judge to set fair, reasonable and nondiscriminatory, or FRAND, rates for those patents. First Instance Proceedings. Para 6 provides, “…as such, in the suit, the plaintiffs have not sought an absolute injunction, against the defendants, from using the SEPs held by the plaintiffs, but have sought for an injunction in the event the defendants are not willing to obtain licences, from the plaintiffs, for use of the said SEPs, at FRAND royalty rates. Following this judgment, a number of anti-anti-suit injunctions were granted by the Munich District Court and it seems that anti-anti-suit injunctions are now becoming part of the standard toolbox of SEP litigation in Germany. The anti-anti-suit injunction was 7 O 14276/20), the Munich District Court has linked the anti-suit injunction (ASI) and anti-anti-suit injunction (AASI) disputes, which have become popular in the past months, to the concept of the “willing licensee” and thus to the success of the FRAND defence. What is your view on this development? Moreover, it can be assumed that Huawei has achieved exactly what it set out to do in 2021: at the beginning of 2021, Huawei announced that it wanted to vigorously market its patent portfolio. Anti-suit injunctions to end 2020 On 25 December 2020, the pace at which global patent courts are prohibiting each other from setting FRAND licence rates, or prohibiting the parties from enforcing patent injunctions, reached a new high. The use of an ‘anti-suit’ injunction in China. Relief will normally be granted unless there is a strong reason not to grant the relief sought. Indeed, as far as I am aware U.S. courts have only granted anti-suit injunctions in global FRAND-disputes on two occasions: Microsoft Corp. v. Motorola, Inc. and TCL v.Ericsson [a helpful discussion of these cases by Contreras and Eixenberger can be found here].In the first case, German infringement suits were initiated well after the US court was seized to set a global … Acta Scientific Medical Sciences 4.10 (2020): . In a recent decision (docket no. Among these was the alleged lack of jurisdiction of the French judge for this case. Wuhan, China is currently a destination jurisdiction for anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI). A recent example involved Air … In China, following the anti-suit injunction from the Chinese Supreme Court, a Wuhan court granted Chinese company Xiaomi's request for an anti-suit injunction against InterDigital, barring InterDigital from seeking junctions in a parallel Indian suit or initiating FRAND suits elsewhere. A classic (and quite real) example of this would be an injunction action in Germany arising out of a SEP and FRAND-fixing action in the US, the anti-suit injunction would In September an anti-suit injunction was granted in Wuhan preventing InterDigital from pursuing a foreign pending suit (Xiaomi v InterDigital); In October (but reported in December), the Shenzhen Court confirmed it has jurisdiction to determine a global FRAND rate for a foreign SEP owner without consent of the SEP owner ( Sharp v Oppo ); The ramp-up occurred around the time of a conference that I attended in China in mid-January of… This is a positive and welcome development for litigants in India. The decision was released by the French Court on November 8, 2019. Germany: Anti-suit injunctions and FRAND defence. In recent years there has been a trend of litigants in FRAND disputes seeking ASIs, as well as anti-anti suit injunctions (AASIs), which prevent a … In the context of FRAND disputes, anti-suit injunctions have mostly been provided by courts in the US and the UK. Keywords: standards, FRAND, patent, anti-suit injunction, injunction Suggested Citation: Suggested Citation Contreras, Jorge L., Anti-Suit Injunctions and Jurisdictional Competition In Global FRAND Litigation: The Case For Judicial Restraint (August 5, 2021). The anti-anti-suit injunction is a response to the practice of some courts, notably in the U.S., to grant anti-suit injunctions which bar a party from bringing proceedings in other jurisdictions. Continental in turn sued Nokia in the US for FRAND licensing and applied for an anti-suit injunction there to stop the German proceedings. In summer 2021, the Regional Court Düsseldorf partially upheld an anti-anti-suit injunction application by the pool members against Xiaomi. They held that the Chinese anti-suit injunction was “a marked and improper intrusion on US sovereignty and the jurisdiction of US courts to decide US patent issues.” The brief said if the Texas court had not delivered its injunction, it would have created chaos in legal proceedings involving FRAND disputes. the Laker case as a paradigm of the international anti-suit injunction (part II), it looks to the domestic cases, and the principles of constitu-tional and judicial policy that appear to govern them, as background against which to … R, Associate at Dr. Gubbi’s House of Justice, Bengaluru Abstract Anti-suit injunctions are indeed an effective instrument for implementing a jurisdictional judgement. Contreras, Jorge L., It’s Anti-Suit Injunctions All The Way Down – The Strange New Realities of International Litigation Over Standards-Essential Patents (July 9, 2020). The decision was released by the French Court on November 8, 2019. Apple has also asked the Eastern District of Texas judge to set fair, reasonable and nondiscriminatory, or FRAND, rates for those patents. Barring appeal, parties are stuck with the anti-suit injunction. Court Grants Preliminary Injunction in Ericsson, Samsung FRAND Suit. It has become common practice in recent years for implementers and right holders to engage in global litigation that is centred on standard essential patents (SEPs). Among these was the alleged lack of jurisdiction of the French judge for this case. Such suits were practically dead. judge declines to block vivendi suit in france including freezing and anti-suit injunctions. The Ericsson v Samsung FRAND licensing dispute explodes into life. However, because of the interference with the foreign forum's jurisdiction, the domestic forum's exercise of authority causes irritation on the part of the foreign forum. Acta Scientific Medical Sciences 4.10 (2020): . An anti-suit injunction is a court order that prohibits a party involved in litigation from either transferring that litigation to another court, or filing an identical lawsuit elsewhere. On 4 th of August 2020, Xiaomi filed an application before the Wuhan Court, seeking an anti-suit injunction (ASI) against the proceedings in India. April 2018, Antony Craggs reports: In Unwired Planet v Huawei, the Patents Court of England & Wales held that it was able to determine the terms of a worldwide FRAND licence and, if the prospective licensee declined to take such a licence, that it would grant an injunction in the UK. 7 O 14276/20), the Munich District Court has linked the anti-suit injunction (ASI) and anti-anti-suit injunction (AASI) disputes, which have become popular in the past months, to the concept of the “willing licensee” and thus to the success of the FRAND defence. on 7 may 2015, tcl obtained an anti-suit injunction prohibiting ericsson from pursuing patent infringement suits in france, the uk and germany, as well as in south america and russia. The recent fights among different courts around Anti-suit injunctions (“ASIs”) and anti-anti-suit injunctions (“AASIs”) and similar demonstrate how FRAND rate setting litigations could escalate. “Anti-Suit-Injunctions in Germany". Anti-Suit Injunctions – Leveling the Playing Field When Seeking a FRAND License to Standard-Essential Patents Technology Standards Standards are technical requirements that encourage: Cooperative innovation Product compatibility Price competition Standard-Essential Patents Standard-Essential Patents (“SEPs”) However, as parties increasingly invoke the procedural tactic in litigation over SEPs and fair, reasonable, and non-discriminatory (FRAND) licensing commitments, countries like France, Germany, and China, among others, have joined in on the practice. “Anti-Suit-Injunctions in Germany". Since then, a heated debate about anti-suit injunctions (ASIs) in patent disputes has raged. Acted for Ferid Allani in a case that paves the way for software patenting in India. The appeal stems from Ericsson’s Emergency Application for an Anti-Interference Injunction related to Samsung’s lawsuit filed in the Wuhan Intermediate People’s Court of China (the Wuhan Action). As such, forum shopping will be the prevailing practice. discusses the anti-suit injunction, a procedural tool increasingly invoked by parties and employed by courts to enjoin parallel foreign proceedings in FRAND disputes. They read as follows: 1. What is the Commission’s analysis of the recent decisions by Chinese courts on SEPs, determining erga omnes the amount of royalties and/or handing … Although a FRAND rate is not necessarily equal for all potential licensees, a lack of transparency can contribute to asymmetric information between negotiating parties. As a result, an anti-suit … This article looks at an increasingly important aspect of these global standards wars: the ability of a court in one jurisdiction to prevent a party from pursuing litigation in another jurisdiction using a procedural mechanism called the anti-suit injunction (ASI). Present & Prospective FRAND Litigation & Arbitration in China ... As Chinese courts and authorities take on active roles in resolving FRAND disputes, China has become a key jurisdiction for the consideration of FRAND issues globally. Bilateral investment treaties depend upon international arbitration as the mechanism to resolve disputes between sovereign states and investors.
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