The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation
Michigan Technology Law Review, Vol. 28, 2022, Forthcoming
64 Pages Posted: 22 Nov 2021 Last revised: 28 Dec 2021
Date Written: November 22, 2021
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.
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