The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation

Michigan Technology Law Review, Vol. 28, 2022, Forthcoming

The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-68

64 Pages Posted: 22 Nov 2021 Last revised: 28 Dec 2021

See all articles by Dicky King Fung Tsang

Dicky King Fung Tsang

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Jyh-An Lee

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Date Written: November 22, 2021

Abstract

In the past two years, antisuit injunctions (ASIs) and subsequent legal proceedings associated with standard-essential patents (SEPs) subject to fair, reasonable, and nondiscriminatory (FRAND) commitments have proliferated in multiple jurisdictions. This phenomenon reveals not only the transnational nature of technical standards and FRAND-encumbered SEPs but also the jurisdictional tension between different national courts. This Article explains the emergence of ASIs in FRAND scenarios and recent developments in six jurisdictions with major interests in standard development and adoption. Countries have developed different approaches to ASIs based on their own domestic rules and interests. We argue that to preserve the efficiency of technical compatibility and international comity, a pressing challenge at the policy level is to facilitate the legal compatibility between jurisdictions. Currently, courts in multiple jurisdictions are competing to grant ASIs and anti-anti-suit injunctions (AASIs), leading to fragmented decisions and significant costs for global standardization. We propose to include an exclusive forum selection clause in the policy documents of standard-setting organizations (SSOs) to reduce undesirable transaction costs stemming from ASIs and subsequent legal actions. Our proposal is more realistic and cost-effective than others concerning FRAND dispute resolution.

Suggested Citation

Tsang, Dicky King Fung and Lee, Jyh-An, The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation (November 22, 2021). Michigan Technology Law Review, Vol. 28, 2022, Forthcoming , The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-68, Available at SSRN: https://ssrn.com/abstract=3968645

Dicky King Fung Tsang

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Jyh-An Lee (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Hong Kong

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