Injunction Rights and the FRAND Conduct Duty in China: A False Dawn for Standard-Essential Patent Holders or a Chance for a New East Asian Consensus?

Abstract

This paper argues, while legal developments since 2016 have affirmed that standard-essential patent (‘SEP’) holders in China subject to fair, reasonable and non-discriminatory (‘FRAND’) terms are eligible to receive injunctive relief, uncertainties remain concerning this right.

The regulatory developments and case law that have come to pass since that time, have established that FRAND-encumbered SEP holders in China owe a conduct duty to standard implementers that they enter into negotiations with. However, this duty has yet to be defined and the details of the conduct that is subject to regulation are incomplete.

The paper proposes that insights into these missing details may be available via a return to a case that preceded these more recent developments, the 2013 Huawei Technologies Co Ltd (‘Huawei’) v InterDigital Corp (‘IDC’) decision. It is also suggested that developments in South Korea and Japan in this area of law are also potentially a useful source of comparison for those occurring in China. However, the paper warns against comparisons that overemphasise the similarities between these or other jurisdictions in terms of the conduct expected of FRAND-encumbered SEP holders, due to the diverse nature of the domestic law dictating these conduct requirements.

Keywords: standard-essential patent, SEP, injunction, FRAND, China, Huawei, InterDigital, South Korea, Japan

JEL Classification: K20, K19