China's Practice of Anti-Suit Injunctions in SEP Litigation: Transplant or False Friend?

Abstract

Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in other courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” whose surface similarities obscure significant differences between China and other jurisdictions. Three distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s efforts to become an innovative power and SEP litigation norm setter whereas foreign ASI practice may not demonstrate similar integration; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater influence over global FRAND rate-setting; and (c) the lack of transparency around China’s ASI practices including the small and incomplete cohort of published cases, and an apparent slow-down in recent ASI decisions, among other factors, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries.

Keywords: Patents; standards essential patents; anti-suit injunctions; transplants; false friends; WTO; TRIPS Agreement; transparency; behavior preservation; precedent