The Phenomenon of Anti-Suit Injunctions and Extraterritorial Implications

Abstract

Whilst the patent licensing market has become increasingly global, patents are still governed by national or regional laws. Accordingly, one of the major debates currently characterizing Standard Essential Patent (SEP) litigation is its ever-increasing extraterritorial implications.

In 2020, the UK Supreme Court in the Unwired Planet v. Huawei case issued a landmark decision, determining for the first time the value of a Fair Reasonable and Non-Discriminatory (FRAND) royalty to be paid globally for an entire SEP portfolio. This decision opened a heated debate on which national court was entitled to define a FRAND royalty rate. In particular, the Chinese courts, which regulate one of the largest consumer goods markets and where most of the manufacturing companies (implementers) are located, have not only felt entitled to do so, but have also started to issue extra-territorial injunctions (the so-called ASI—Anti-Suit Injunction) to prevent other national courts from making their decisions. This approach has raised considerable concerns regarding the legitimacy of such actions.

Keywords: phenomenon, anti-suit injunctions, extraterritorial implications, FRAND, SEP, UK supreme court, unwired planet, huawei case