Analysis of Chinese Anti-Suit Injunctions in SEP Litigation

Abstract: In this article， two cases of Standard Essential Patents， ruled by the Supreme People's Court of the People's Republic of China， are presented and analyzed. The first Chinese anti-suit injunction in SEP litigation appeared in the first case through the method of behavior preservation， and the second case illustrates a clear intent by the Chinese courts to compete for global royalty rate jurisdiction. With international concerns raised about these cases， it is proved that the anti-suit injunction cases in China do not show any abusive or illegal conduct. The worldwide anti-suit injunctions in China are granted legitimately with legal jurisdiction over the cases， sufficient legal grounds for behavior preservation with the nature of anti-suit injunctions， the necessity of granting worldwide injunctions， and suitable granting standards. Several pieces of advice are proposed for the future application of anti-suit injunctions， including improvements in the predictability of validity scope， consistency of implementation， and clarification of penalties.

Keywords: anti-suit injunction; anti-anti-suit injunction; FRAND royalty rate; jurisdiction; SEP

CLC: D 912" " " " " "DC: A" " " " " " " " " Article ID: 2096-9783（2025）01⁃0138⁃11

1 Introduction

The infrastructure race of cutting-edge technology has evolved rapidly[1]， and there have been an increasing number of patent disputes worldwide in recent decades[2]. Furthermore， in litigation over Standard Essential Patents (referred to as SEPs)， courts all over the world are competing for jurisdiction over global FRAND (fair， reasonable， and non-discriminatory) royalty rates1 with anti-suit injunctions and anti-anti-suit injunctions[3]. China， as one of the world's largest producers and consumers of technical goods， hosts many international corporations embroiled in technical standards disputes. Now， China joins the United Kingdom， the United States， and other European Union countries in the race for SEP jurisdiction with two important verdicts made by the Supreme People's Court of the People's Republic of China (referred to as SPCC). These two pioneering cases will be illustrated and analyzed in this article， focusing on the rationale and attitudes of Chinese courts on two issues: anti-suit injunctions and jurisdiction over global FRAND royalty rates.

Meanwhile， anti-suit injunctions issued by Chinese courts have raised severe concerns from other countries. For example， the European Union initiated a World Trade Organization dispute complaint in February 2022 regarding Chinese intellectual property enforcement， challenging anti-suit injunctions issued by the Chinese courts[4]. Some countries2 have asked to join the European Union consultation request as well[5]. The United Kingdom promulgated a document in 2022 on SEPs， including notes stating that the anti-suit injunctions issued by the Chinese courts are problematic[6]. Therefore， it is necessary to have a thorough and detailed analysis of the cases.

This article intends to examine the typical cases in China in detail. The Chinese cases of anti-suit injunctions attract numerous attention and furious discussions all over the world. This article analyzed the controversial issues of the Anti-Suit Injunctions in China and proposed possible advancements for future applications.

2 Typical SEP Cases in China and Predicaments over Them

Anti-Suit Injunctions and FRAND jurisdiction competitions are both strategies for dealing with the problem of parallel litigation in SEP cases. Nonetheless， the emergence and spread of anti-suit injunctions， as well as the global competition of FRAND jurisdictions， raise a slew of new issues[7]. It is even more difficult to say whether these techniques reduce or increase the parallel litigation quandary. With China joining the competition， the global SEP litigation scenario may undergo some unpredictable changes as well. Nonetheless， in order to map out the international prospect， it is necessary to have a brief analysis of China's current moves.

2.1 First Case on SEP Anti-Suit Injunctions: Huawei v. Conversant

In China， anti-suit injunctions are not specifically stipulated in any legal document. Yet， by means of behavior preservation3， SPCC issued the first anti-suit injunction in SEP cases in China in Conversant Wireless Licensing SARL (referred to as Conversant) v. Huawei Technologies Co.， Ltd. amp; Others (referred to as Huawei)4.

Conversant and Huawei initiated the royalty rate negotiations in 2014. However， disputes had arisen in the process. Conversant sought a global royalty rate for all patents， whereas Huawei wanted a separate licensing rate for patents registered in China. Hence， Conversant filed a case in the United Kingdom in 2017， alleging that Huawei infringed on its four European patents and requesting the court to determine the FRAND royalty rate between Conversant and Huawei following Unwired Planet v. Huawei5. Huawei applied for an appeal of the jurisdictional objection， and it was denied6. In 2018， Huawei and Conversant filed lawsuits against each other in China and Germany， respectively7. In August 2020， the District Court of Düsseldorf， Germany， issued an injunction prohibiting Huawei from selling， using， importing， or possessing relevant products that infringed Conversant's patents， ordering Huawei to disclose its infringement and sales， and ordering Huawei to destroy and recall all related products. The injunction became enforceable under German law upon Conversant's submission of a 2.4 million Euro guarantee8.

Because three of the patents were still in dispute in China， Huawei filed an application for behavior preservation in China right away， preventing Conversant from enforcing the German injunction. SPCC issued an anti-suit injunction in 2020 to prevent Conversant from enforcing the German injunction until the Chinese cases were resolved9. The conversant requested SPCC to reconsider this decision， but the request was denied. This is China's first FRAND anti-suit injunction. While the injunction is in the form of behavior preservation， it serves the function of anti-suit injunctions and demonstrates SPCC's attitude in future rulings.

SPCC believes that the anti-suit injunction issued in the case is timely， necessary， balanced， and legal. The court's decision shows both caution and a willingness to implement this measure in similar circumstances， establishing a baseline and precedent for the use of anti-suit injunctions in SEP litigation in China. SPCC's ruling focuses primarily on the necessity and appropriateness of issuing the anti-suit injunction， offering an answer to the possible questions for the future anti-suit injunction issuance practice.

2.2 First Case on Global FRAND Jurisdictions: Oppo v. SHARP

In Huawei v. Conversant， the SPCC issued the first FRAND anti-suit injunction in China， but it did not declare global FRAND jurisdiction. The British court rendered the final decision on the FRAND rate between Conversant and Huawei. However， not long after Huawei v. Conversant， in the case of Guangdong OPPO Mobile Telecommunications Corp.， Ltd. (referred to as OPPO) v. Sharp Corporation and Scienbizip Japan Corporation (referred to as Sharp)10， SPCC clearly demonstrated its jurisdiction over the global FRAND rate11， competing directly on the determination of the global FRAND royalty rate and indicating an interest in participating in this international jurisdiction race.

Sharp and OPPO began negotiating the royalty rate for SEPs in October 2018， with Non-Disclosure Agreements signed in 2019. Sharp， on the other hand， filed a patent infringement lawsuit in Japan's Tokyo District Court and requested an injunction to prevent OPPO from selling its products in January 2020. Sharp later filed another suit in Germany in March for infringement of five LTE standard patents. Then， Sharp pledged another patent infringement suit in Taiwan of the People's Republic of China in April. To defend itself， OPPO filed a counterclaim against Sharp in Japan for patent infringement as well12. A global litigation competition kicked off.

In the process， OPPO sued Sharp in the Shenzhen Intermediate Court in China for the violation of its FRAND commitments， while Sharp filed a jurisdiction objection. However， the Shenzhen Intermediate Court sided with OPPO and granted an anti-suit injunction. Sharp obtained an anti-anti-suit injunction from the German court only 7 hours after the Chinese court's injunction， asking OPPO to withdraw its application for the anti-suit injunction. Ultimately， Sharp retracted its anti-anti-suit application and promised to obey the anti-suit injunction issued by the Chinese court.

OPPO and Sharp agreed to cross-license their patents and dropped their disputes in October 2021. As a result， both companies can utilize each other's technologies and patents. It will benefit both companies' future development and pave the way for their expansion[8]. The agreement ends the ongoing global litigation competition and establishes a harmonious partnership between the parties.

Chinese courts race toward gaining jurisdiction in OPPO v. Sharp， and both the Shenzhen Intermediate Court and SPCC put tremendous effort into proving that the Chinese court has jurisdiction over the global FRAND rate. This explicitly implies China's intention to join the international jurisdiction game of global FRAND rate.

2.3 Salient Predicaments over Chinese Anti-Suit Injunctions

In the consultation raised by the European Union in the World Trade Organization， it articulated several concerns over the measures taken by the Chinese courts in SEP cases[9]. Several countries joined the consultation as well. Many scholars and practitioners have expressed their worries over the jurisdiction competition with anti-suit injunctions， especially with the participation of Chinese courts. The salient predicaments are focusing primarily on two issues: (1) the legitimacy of the anti-suit injunctions issued in China， and (2) the application process of the anti-suit injunctions.

On one hand， the opponents question the legal foundation of the Anti-Suit Injunctions in China. First， the global FRAND rate jurisdiction of the Chinese courts has been challenged. While many courts claim for legitimate anti-suit injunctions of global FRAND rate jurisdiction， none enjoys worldwide recognition of exclusive jurisdiction over it. The same goes for China. Because the jurisdiction of any national court is confined to its territory， the rulings on global license and global FRAND rate by any national court are bound to be questioned and challenged by other jurisdictions. Second， it is stated that behavior preservation with the nature of anti-suit injunctions is a fallacious use of this interim measure. Due to the lack of anti-suit injunctions legislation in China， the Chinese court cannot issue anti-suit injunctions on a legitimate ground. Third， scholars criticize Chinese anti-suit injunctions as inferior transplantation of those in the United Kingdom and the United States， with no sound rationale for their issuance standard. China has little experience in anti-suit injunctions， and no specific rule has been developed. Hence， the pressure of deciding the Anti-Suit Injunction application has been shifted to the judges. With the lack of thorough guidance， the issuance standards are not stable. Fourth， the necessity of worldwide anti-suit injunctions in SEP disputes has been questioned. While anti-suit injunctions have been used in numerous non-SEP areas， few of them issued worldwide injunctions. Hence， many countries question whether the worldwide injunctions used may be unnecessarily aggressive with dubious intentions.

On the other hand， the application procedure for anti-suit injunctions in China has been criticized as well. First， the anti-suit injunctions issued in China do not show a systematic pattern in their issuance procedure， thus the validity scope of the anti-suit injunctions varies. The unpredictability of the Anti-Suit Injunctions hurdles the participants in the litigation. Second， the implementation of the issuance standards of the anti-suit injunctions is not consistent. The weight among relative consideration elements including dispute parties， the impact of concerned suits， and international comity is uncertain in each case. Third， most bullets have been headed toward the punishment used by the Chinese courts if one disobeys the anti-suit injunctions. Although the Chinese Civil Procedure Law allows fines and confinement， it has not identified whether it could be used as an accumulative daily fine. Apart from the anti-suit injunction cases， the daily fine punishment is never used in behavior preservation measures. Thus， foreign officials， professionals， and scholars assert that the punishment is an abusive use of the law and lacks a legitimate foundation. As a pioneering application， the punishment applied for disobedience of anti-suit injunctions indeed needs more rationale and explanation in the future anti-suit injunction legal practice.

3 Legitimacy of the Issuance of Anti-Suit Injunctions

3.1 Legal Base for Jurisdiction over Global FRAND Rates

In recent years， both the United Kingdom and the United States have demonstrated a willingness to determine global FRAND rates in SEP litigation. In Unwired Planet v. Huawei13 and TCL v. Telefonaktiebolaget14， both courts in the United Kingdom and the United States respectively declared proper jurisdiction over the global FRAND rate. Nonetheless， attitudes toward the extraterritoriality of FRAND rate determination diverge later between the UK and the US. The case of TCL v. Telefonaktiebolaget was overturned by the United States Court of Appeals and remanded to the district court15. The United States courts demonstrated this inconsistent attitude again in Optis v. Huawei when they denied the determination of the global FRAND rate in this case16. These cases reveal that the United States court prefers to limit rather than broaden its jurisdiction in determining the FRAND rate. Internationally， it is to be expected that disputes over jurisdiction in SEP litigation will increase. Although some scholars believe that courts are no longer an appropriate option for determining FRAND rates[10⁃12]， alternative dispute resolution mechanisms have yet to emerge， and courts remain at the top of the options list.

In Oppo v. Sharp case， the jurisdictional issue is whether it is appropriate to litigate in China. In essence， SPCC asserts that SEP litigation bears numerous similarities to contract disputes and ought to be viewed as contractual in nature[13]. In considering the jurisdiction， numerous factors should be taken into account， including where the licensed patent is registered， where the patent is implemented， where the contract is signed and negotiated， where the enforceable properties are located， loci solutions， etc. It means that if one or more of the previously mentioned places is within China， the case has appropriate contacts with China， and it may be reasonable for a Chinese court to exercise jurisdiction. In this case， the plaintiff is a Chinese company， and several of the patents in dispute held by the defendant are licensed in China. Furthermore， both the manufacture of the products and the negotiation of the patent contract are done in China. China is where patent licensing， SEP implementation， and FRAND contract negotiation take place. Hence， this case is within the jurisdiction of the Chinese court. Additionally， since the SEP disputes contain inevitable international characteristics， it is reasonable to set a global FRAND royalty rate between the parties in order to reduce their dispute-resolving energy， time， and cost. When the parties started their negotiation process， they intended to reach an agreement on a global license with a global FRAND rate. Therefore， to rule a global FRAND rate is in compliance with the notion and understanding of FRAND.

In OPPO v. Sharp， the Chinese courts disclose their intention to assert jurisdiction over global FRAND determination yet retain their judicial restraint as well. As demonstrated by the judgments， the legitimacy of the jurisdiction is attained under the principle of contractual jurisdiction while maintaining international comity. However， this does not mean that the dilemma confronting the United States courts has been fully resolved in China. While the court with proper jurisdiction over the SEP case could assert jurisdiction over the global FRAND rate， it could not announce exclusive jurisdiction over the issue. As advanced technology emerges to be one of the most important public interests of every country， to rule a global FRAND rate by any court could be problematic， especially in its enforcement[10]. With more countries claiming de facto jurisdiction for global FRAND rate setting， another type of competition would arise. Until now， the United Kingdom， the United States， France， and China have all claimed jurisdiction over global FRAND rates. The patent holders would， undoubtedly， select forums in favor of them for setting high global rates， whereas the implementers would challenge these judgments from jurisdictions reputable for lower rates[14]. As the development of every country is imbalanced， some enjoy advanced development and abundant cutting-edge patents， whereas others can only purchase technology licenses from them. With the variation of national interests， the domestic courts may have different preferences on global FRAND rate-setting methods in SEP litigations[15]. Therefore， the adjudication of the global FRAND rate from any forum would suffer enforcement and cooperation issues.

3.2 Legal Base for Behavior Preservation with the Nature of Anti-Suit Injunctions

While behavior preservation does serve a similar function as restraining a party from taking certain actions in order to prevent further damages to the current proceeding， it is criticized that it does not explicitly entrust any Chinese court to issue anti-suit injunctions. Some scholars share this view and indicate that the use of behavior preservation as anti-suit injunctions in China lacks insufficient legal ground[16].

Yet， exercising the function of anti-suit injunctions through the behavior preservation system， while not being the most satisfactory mechanism， is an acceptable and legitimate means. It should be noted that behavior preservation contains two aims: (1) to ensure the enforcement of the judgment， and (2) to prevent illegitimate damages. Although the latter aim of behavior preservation is not named under anti-suit injunctions， it serves similar functions as anti-suit injunctions[17]. Owing to the multiple overlaps of the behavior preservation and anti-suit injunctions in both application scopes and effects， a definitive refusal of behavior preservation with the nature of anti-suit injunctions on the grounds that it is not specifically designated as anti-suit injunctions would be unduly subjective and biased. Vexatious or oppressive litigation that is targeted by typical Anti-Suit Injunctions should be categorized as a tort action and could be regulated with behavior preservation[18]. The stipulations of behavior preservation in the Civil Procedure Law in China are mainly general and fundamental， with only the basic concepts of factors to be taken into account when issuing behavior preservation orders. Yet， whether a specific circumstance could fall into the ambit of behavior preservation still calls for the discretion of the judges. Therefore， using behavior preservation with the nature of anti-suit injunctions at the moment is a reasonable path[19]， and the legitimacy of behavior preservation with the nature of anti-suit injunctions is irrefutable.

3.3 Suitability of the Issuance Standards of Anti-Suit Injunctions

3.3.1 The Pervasive Issuing Standards

While there is no universally accepted principle or guideline， existing precedents in the United States and the United Kingdom have established some frameworks for the issuance of Anti-Suit Injunctions[2]. The three-step framework was established in the United States in E. amp; J. Gallo Winery v. Andina Licores S.A.17， and it was reemphasized in Microsoft v. Motorola18， which is the first FRAND-related anti-suit injunction in the world. In general， the anti-suit injunction's analytical framework includes three perspectives: identification of parties， competing elements， and tolerance of international comity[7].

Primarily， the court needs to examine whether the parties and the issues in the action are practically the same. It should be noted that the anti-suit injunction works to eliminate parallel and duplicate litigation. Therefore， if the parties and issues were functionally the same in the domestic suit and the foreign suit， they could be viewed as parallel litigation by the court. Additionally， the court needs to decide whether the domestic suit would be overturned by the foreign suit. As illustrated in the Re Unterweser Reederei case， the four elements for anti-suit injunction examination include: \"(1) frustrate a policy of the forum issuing the injunction; (2) be vexatious or oppressive; (3) threaten the issuing courts in rem or quasi in rem jurisdiction; or (4) prejudice other equitable considerations.\"19 The fulfillment of either one of the four factors would justify the issuance of an anti-suit injunction. Last but not least， before issuing the Anti-Suit Injunction， the court must consider the international comity.

In order to have a better understanding of the anti-suit injunction standards in SEP litigation， Jorge L. Contreras evaluated several anti-suit injunctions in FRAND suits worldwide. By decoding the anti-suit injunction judgments， he demonstrated that the most important and determining factor of issuance is whether the local action would be dispositive of the foreign litigation[14]. That is， if the domestic ruling would make the foreign litigation unnecessary， the court would have a high probability of issuing an anti-suit injunction. While the impact of the foreign litigation is evaluated in all cases， comity has not been mentioned in roughly half of the anti-suit injunction cases.

Therefore， while the issuance framework and standards have been illustrated in previous precedents， the judicial practice still enjoys some flexibility. Meanwhile， those anti-suit injunctions issued in SEP disputes vary from country to country as well. For instance， the framework for issuing measures functioning as anti-suit injunctions formed by German courts in SEP disputes is unique. Traditionally， German courts have generally refrained from intervening in litigation that takes place outside their borders. Consequently， they have consistently rejected anti-suit injunctions while supporting defensive anti-anti-suit injunctions. Yet， as SEP disputes escalate， German courts actively participate in the competition. In order to meet the needs of anti-suit injunctions in SEP cases， German courts have adjusted the existing framework of anti-anti-suit injunctions[20]. By allowing the plaintiff to apply for anti-anti-suit injunctions before the defendant files for any foreign anti-suit injunctions， the German courts expand the applicable situation of their anti-anti-suit injunction to include the function of anti-suit injunctions. That is to say， although the pervasive anti-suit injunction issuance standards show some resemblances， there is no coherent and strict regulation on the standards.

3.3.2 The Framework Used in Chinese SEP Cases is Similar to Counterparts Elsewhere

SPCC's decision in its first anti-suit injunction case provides a framework for the issuance of Anti-Suit Injunctions in China. In general， the framework developed here is very similar to that used in other countries. As demonstrated in its decision， SPCC takes three factors into account for the evaluation of the issuance of Anti-Suit Injunctions.

First， whether the parties and issues of both domestic and foreign cases are functionally the same. In this case， while the participants in both suits involve Huawei and Conversant as participants， the litigants in the Chinese suit and the foreign suit pertain to different subsidiaries of Huawei. This is a common occurrence given that the major brands involved in SEP litigation are mostly multinational corporations with branches all over the world. Although the branches are independent businesses， they should be viewed as a unit with the mother company in this case because they are highly related and functionally identical. In addition to the participants， the issues in SEP litigation are usually diverse as well， including patent validity， patent infringement， FRAND royalty rate， etc. A more specific criterion is required for the evaluation of the issues.

Second， whether the outcome of the foreign litigation will be decisive to the domestic case. While some countries do not include this requirement or use different words in their anti-suit injunctions， it is widely accepted. Scholars' relevant empirical case studies demonstrate this finding[14]. This factor is primarily used by the court to protect its jurisdiction， and China shares this viewpoint. However， this factor is ambiguous in theory and overemphasized in practice.

Third， whether the anti-suit injunction violates public policy and international comity. While comity is ignored in numerous judgment rationales by foreign courts， the SPCC made an effort to address this issue because the dispute between Huawei and Conversant receives a lot of attention from international scholars and practitioners. In fact， the issuance of an anti-suit injunction， no matter how justified， has a direct or indirect impact on international comity. As a result， rather than considering comity as a decisive factor in issuing an anti-suit injunction， the court should view comity as an evaluating element in a broader context[21]. In this process， the court should try to balance and rebalance domestic public policy with international comity， rather than allowing one to significantly suppress the other.

In addition to the standards accepted by the United Kingdom and the United States， SPCC places a strong emphasis on the doctrine of balanced interest in the case. Much ink has been spilled on the doctrine of balanced interests in Chinese rulings because it is both a legislative and judicial principle. As a result， during the anti-suit injunction issuance procedure， SPCC earnestly considers whether the injunction would jeopardize the Conversant's rights and interests. SPCC demonstrated its prudence in both procedural and substantive areas by applying the proportionality principle in this case.

Accordingly， while the Chinese framework develops some characteristics of its own， it does not vary dramatically from the basic consensus.

3.4 Necessity of the Issuance of Worldwide Anti-Suit Injunctions

The most perplexing issue in anti-suit injunctions is the aggressiveness of the worldwide injunctions. In most of the previous anti-suit injunctions in common-law countries， the injunctions were only targeted at specific actions in limited areas. However， many worldwide anti-suit injunctions have been issued in SEP litigation. The prevailing anti-suit injunction race should be attributed to the special needs of SEP cases.

On one side， the SEP disputes contain numerous international elements. While the patents are granted on a territorial basis， the standards applicable to the implementation， production， development， and sale of patent-related products are global in nature. Thus， the SEP disputes are mainly international as well. Every country with a connection to patent-related products enjoys a sip of jurisdiction. If the court did not issue worldwide anti-suit injunctions， the plaintiff would need to apply for multiple anti-suit injunctions. Moreover， even with multiple anti-suit injunctions issued， the defendant could always initiate another suit in countries not targeted by anti-suit injunctions. Since patent-related products usually possess sales in numerous countries， the defendant has abundant choices of the forum for parallel litigation. The chaos of parallel litigation and duplicate anti-suit injunction applications would cause an increase in judicial burden and costs. In order to reduce litigation contests， issuing a worldwide anti-suit injunction is necessary for SEP disputes.

On the other side， the prevailing anti-suit injunctions fuel the jurisdictional competition over FRAND disputes. By restricting foreign litigation in the case， the domestic court intends to secure its jurisdiction over SEP disputes. The race of anti-suit injunctions is not only an unsatisfactory resolution to future SEP disputes but also an encouragement of expensive yet uncertain parallel litigation[22]. Therefore， it should be recognized that the issue lies not in the issuance of worldwide anti-suit injunctions but in the jurisdiction competition. Hence， compared to restricting the widespread issuance of anti-suit and anti-anti-suit injunctions， an international resolution approach to the resolution of SEP disputes is needed to resolve the chaos of anti-suit injunctions and anti-anti-suit injunctions. Without such an international approach， the benefits of worldwide anti-suit injunctions outweigh their disadvantages in the resolution of SEP disputes.

With the necessity of the worldwide anti-suit injunctions in SEP litigations， China does not intend to extend its jurisdiction over global FRAND rate determination by massively aggressive anti-suit injunctions. While China has not stated its position on this issue， it should be noted that China has not actively engaged in jurisdiction competition and has no plans to challenge other countries' jurisdictions with minimum contact doctrine or other standards with even lower requirements. Furthermore， international comity and respect for other jurisdictions remain at the top of the Chinese courts' priority list[23]. This attitude suggests that China may prefer defensive anti-suit legislation over aggressive anti-suit legislation[24]. The above attitude could help to prevent China from engaging in a race to the bottom competition with other jurisdictions actively. More overt evidence could be seen in another case in 2020 between Lenovo and Nokia; the Shenzhen Intermediate Court denied an anti-suit injunction application20. With this in mind， China may propose a limited jurisdiction over global FRAND rate cases with essential doctrines and certain thresholds.

4 Proposals for Future Anti-Suit Injunctions Application in SEP Cases

As noted by some scholars， the legitimacy of the anti-suit injunctions in China is similar to those in other countries[25]. While it is legal to use behavior preservation with the nature of anti-suit injunctions， it would be more appropriate to establish a more comprehensive anti-suit injunction regime in China[26]. Since the anti-suit injunction should be interpreted in light of this understanding: anti-suit injunctions with international elements are， overall， more complicated than domestic behavior preservation[27]， China should consider enacting a separate anti-suit injunction legislation to fill this void[28]. And many academics advocate for a suitable regime for resolving jurisdictional conflicts as well[29]. Yet， as an interim process before the anti-suit injunctions regime could be accepted and legislated， several improvements can be made swiftly for the present application of anti-suit injunctions in China.

4.1 Enhancing Predictability of the Validity Scope of Anti-Suit Injunctions

One of the major concerns over anti-suit injunctions issued by the Chinese courts is predictability. The anti-suit injunction precedents in China witnessed some unexpected progress in a short period. While the first case of Huawei v. Conversant only referred to the judgments of the German court21， the following cases expanded the validity scope of anti-suit injunctions to lawsuits and injunctions from worldwide， although nuances exist between them. In Xiaomi v. InterDigital， the anti-suit injunctions enveloped all proceedings worldwide22， whereas the anti-suit injunctions in OPPO v. Sharp limited their scope to new proceedings only， excluding existing proceedings23. A more innovative approach was taken in Samsung v. Ericsson where the anti-suit injunctions functioned as an anti-suit injunction， an anti-anti-suit injunction， and an anti-enforcement injunction all-in-one24. These drastic leaps in the anti-suit injunctions cases decrease the predictability of the anti-suit injunctions. Neither the plaintiff nor the defendant can have a general anticipation over future anti-suit injunctions through previous precedents.

Since using behavior preservation with the nature of anti-suit injunctions is an innovative action taken in judicial practice， it is mainly restricted by the unsubtle written rules and the discretion of the judges. Neither of these restrictions offers adequate predictability of the anti-suit injunctions. Hence， more detailed stipulations are required to increase the predictability of the validity scope of anti-suit injunctions. While worldwide anti-suit injunctions are legitimate in many SEP litigations， with a clear impact on foreign proceedings， they should not be granted ubiquitously in all situations. Moreover， the triple-function anti-suit Injunctions granted in Samsung v. Ericsson may not be an appropriate choice in most SEP cases. Hence， establishing a more elaborate validity scope to refine the present application of anti-suit injunctions would be a proper transitional move for enhancing the predictability of the anti-suit injunctions if a systematic regime could not be built soon.

4.2 Improving Consistency of Anti-Suit Injunctions Practices

A general framework is recognized for the issuance of standards of the anti-suit injunctions in China with basic elements including: (1) the identicalness of concerned parties and issues， (2) the adverse impact of the foreign litigation， and (3) international comity and public policy. As the issuance standards in China are formed under the framework of behavior preservation， the standards are not specifically designed for the purpose of anti-suit injunctions. Therefore， the application of most elements of the standards requires the discretion of the judges.

While the issuance standard of anti-suit injunctions in China is identified to be roughly harmonized with the pervasive international norms， the standards demand more endeavor to improve consistency and limit discretion， especially in prioritizing different elements. Lacking further elaborations in the judicial practice， inconsistencies might emerge among cases. This is vital in SEP cases since most cases experienced varied review criteria in the past few years in courts all over the world. Having a consistent standard in how Chinese courts would evaluate and decide future cases would boost the confidence of the related parties and lessen the repellence of the other countries.

To reduce uncertainty and ambiguity in the future application of the anti-suit injunctions， China could combine both statutory legislation and publicizing typical precedents pointed out by SPCC. It should be noted that not only anti-suit injunction issuance standards but also the application priority ladder of the reviewing elements require further elaboration and clarification.

4.3 Clarification of the Anti-Suit Injunctions Penalties

In the reconsideration application of the Huawei v. Conversant case， Conversant questioned the legality of the coercive measure granted with the anti-suit injunction. According to Conversant， behavior preservation disobedience is a one-time action that should not be punished repeatedly. Nonetheless， SPCC explains in its ruling that the violation of the behavior preservation with the nature of anti-suit injunctions is an active and intentional action. As a result， the disobeying action should be regarded as a new violation every day before its full obedience. For the gravity of this offense， the court ruled that a daily fine of 1 million RMB is appropriate.

Nevertheless， some officials and scholars from several countries oppugn the punishment used in the Chinese anti-suit injunctions severely as well. Many insist that the use of high daily fines is a means to protect Chinese companies and to set lower rates for global FRAND rates. Although a daily fine of a maximum of 1 million RMB is a flexible utilization of the punishment set in Chinese Civil Procedure Law with the explanation of it， it has never been used in the same way in any former behavior preservation precedents. Hence， it would be difficult for the participants， including lawyers， litigation parties， and foreign officials， to predict the outcome of disobeying anti-suit injunctions. This scenario raises conflicts among international societies and requires further improvements.

Accordingly， it is recommended to have more specific legislation and clear judicial practices in China. On one hand， based on current civil procedure law， the implementation requirements and restrictions should be clearly stated[18]. With explicit rules on daily fines and clear rationale， not only the practitioners but also the ordinary public would be able to understand how severe the punishment would be if one disobeyed the anti-suit injunctions. On the other hand， more illustrative and demonstrative typical cases should be published to increase public awareness. Therefore， when encountering anti-suit injunctions， anti-anti-suit injunctions， or even anti-anti-anti-suit injunctions， the participants would be able to weigh the outcomes and make an informed decision.

5 Conclusion

As technology rockets to grab vital importance in the national interest， many countries intend to seize the jurisdiction of SEP cases， especially the authority to determine global FRAND royalty rates. After the first anti-suit injunction issued by the United States in SEP disputes， more and more countries have joined the anti-suit injunction competition. The trend of extensive use of anti-suit injunctions has raised more anxiety among the dispute parties since they are unable to foresee the litigation track and costs.

While anti-suit injunctions have been used in SEP disputes by several countries， those issued by the Chinese court have received the most criticism. Many assert that the Chinese rulings intend to protect the unfair interests of Chinese corporations， thus jeopardizing the international public interest. By reviewing existing Chinese judgments， it is recognized that there is sufficient legitimacy for Chinese anti-suit injunctions in these cases， and the issuance of the anti-suit injunctions is suitable and necessary. Hence， it would be improper to state that the Chinese courts are abusing their judicial power in SEP cases.

Nonetheless， the issuance of worldwide anti-suit injunctions by numerous countries would cause furious jurisdictional competition. Improving the transparency and predictability of anti-suit injunctions would be helpful for the future application of anti-suit injunctions in China. Various practices in the issuance of anti-suit injunctions may confuse the public. Additionally， the penalties on account of the anti-suit injunctions are pivotal for the actual enforcement of the anti-suit injunctions. Accordingly， a clear standard of the penalties could be instructive.

It is unclear how the WTO panel would view anti-suit injunction cases in China. But if the WTO panel would eventually hold that Chinese anti-suit injunctions are improper under the TRIPs Agreement， the decision would strike not only Chinese anti-suit injunctions but also anti-suit injunctions issued by other countries. Hence， anti-suit injunctions all over the world are waiting for the fall of the sword of Damocles.

References:

[1] STROUD J， LALL L. Paper of record: modernizing ownership disclosures for U.S. patents[J]. West Virginia Law Review， 2022(2): 449⁃478.

[2] YU P， CONTRERAS J， YANG Y. Transplanting anti-suit injunctions[J]. American University Law Review， 2022(4): 1537⁃1618.

[3] BLIND K， POHLMANN T. Trends in the interplay of IPR and standards， FRAND commitments and SEP litigation[J]. Science， 2013(11): 177⁃181.

[4] EU initiates WTO dispute complaint regarding Chinese intellectual property enforcement[EB/OL].[2022-08-10]. https://www.wto.org/english/news_e/news22_e/ds611rfc_22feb22_e.htm.

[5] WTO dispute settlement - DS611: China – enforcement of intellectual property rights[EB/OL] [2022-08-10]. https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds611_e.htm.

[6] Standard essential patents and innovation: call for views[EB/OL] [2022-08-08]. https://www.gov.uk/government/consultations/standard-essential-patents-and-innovation-call-for-views.

[7] TSANG K F， LEE J-A. The ping-pong Olympics of antisuit injunction in FRAND litigation[J]. Michigan Technology Law Review， 2022(2): 305⁃383.

[8] OPPO and Sharp sign a cross license agreement and end global patent disputes[EB/OL] [2022-09-08]. https://www.oppo.com/en/newsroom/ip/oppo-and-sharp-sign-a-cross-license-agreement/.

[9] EU challenges China at the WTO to defend its high-tech sector[EB/OL] [2022-02-21]. https://trade.ec.europa.eu/doclib/press/index.cfm?id=2361.

[10] GREENBAUM E. No forum to rule them all: comity and conflict in transnational frand disputes[J]. Washington Law Review， 2019(3): 1085⁃1136.

[11] LIU K C. Arbitration by SSOs as a preferred solution for solving the FRAND licensing of SEPs?[J]. IIC - International Review of Intellectual Property and Competition Law， 2021(6): 673⁃676.

[12] ARNOLD R. The EU's WTO complaint against China can only be resolved by establishing legally enforceable global arbitration of SEP disputes[J]. Journal of Intellectual Property Law amp; Practice， 2022(4): 329⁃331.

[13] LEMLEY M A， SHAPIRO C. A simple approach to setting reasonable royalties for standard-essential patents[J]. Berkeley Technology Law Journal， 2013(2): 1135⁃1166.

[14] CONTRERAS J L. The new extraterritoriality: FRAND royalties， anti-suit injunctions and the global race to the bottom in disputes over standards-essential patents[J]. Boston University Journal of Science amp; Technology Law， 2019(2): 251⁃290.

[15] DHENNE M. Calculation of FRAND royalties: an overview of practices around the world[J]. European Intellectual Property Review， 2019(12): 754⁃764.

[16] ZHANG Y R， LI J C amp; YANG W. The dilemma and improvement of anti-suit injunctions in standard-essential patent litigation in China[J]， Computer Law amp; Security Review， 2024(52): 105929.

[17] ZHANG W P， The construction and implementation of China's anti-suit injunction[J]， China Law Review， 2022(2): 173⁃185.

[18] CUI J G. Application of anti-suit injunctions in SEP litigation[J].Intellectual Property， 2023(2): 41⁃70.

[19] ZHONG C. Judicial response to anti-injunction in international patent litigation[J].Intellectual Property， 2018(4): 88⁃96.

[20] HESS F K. US anti-suit injunctions and German anti-anti-suit injunctions in SEP disputes[J].The Journal of World Intellectual Property， 2022(2): 536⁃555.

[21] TSANG K F， LEE J A. Unfriendly choice of law in FRAND[J]. Virginia Journal of International Law， 2019(2): 220⁃304.

[22] TSILIKAS H. Anti-suit injunctions for standard-essential patents: the emerging gap in international patent enforcement[J]. Journal of Intellectual Property Law amp; Practice， 2021(7): 729⁃737.

[23] HUANG Z H. The legal interpretation and rules application of anti-suit injunctions in foreign-related civil litigation in China[J].Science of Law - Northwest University of Political amp; Law， 2022(5): 178⁃190.

[24] ZHU J J. Conflicts and responses to anti-suit injunction and anti-anti-suit injunction of standard essential patents[J].Intellectual Property Rights， 2021(6): 14⁃24.

[25] BONADIO E， LUCCHI N. Anti-suit injunctions in SEP disputes and the recent EU's WTO/TRIPS case against China[J]. The Journal of World Intellectual Property， 2023(3): 477⁃489.

[26] OU F Y. Anti-Suit Injunctions in international civil proceedings[M]. Beijing: Beijing University Press， 2007: 133.

[27] OU F Y， YUAN J P. A study on the anti-suit injunction system in international patent litigation[J].Journal of Hunan University (Social Sciences)， 2022(2): 136⁃146.

[28] SONG X. Judicial methods of anti-suit injunctions on foreign-related standard essential patents disputes[J].Law Science， 2021(11): 176⁃192.

[29] SHEN H Y.The construction of the system of extraterritorial application of Chinese law and the reform of the jurisdiction system of foreign-related civil and commercial litigation - the principle of forum non conveniens and the construction of the anti-suit injunction mechanism[J].Applied Jurisprudence in China， 2020(5): 114⁃128.

中国标准必要专利诉讼中的禁诉令研究

欧福永，张霄骁

（湖南师范大学" 法学院，长沙 410081）

摘" " 要：文章研究了我国最高人民法院判决的两起标准必要专利案件。最高人民法院在案例一中通过行为保全方式实现了我国标准必要专利诉讼中禁诉令的突破，案例二则表明了我国法院争夺全球特许权使用费管辖权的明确意图。虽然我国的禁诉令引起了国际社会的诸多关注，但是通过分析可以发现我国禁诉令并没有被滥用或违反法律规定。我国禁诉令具有合法的管辖基础，禁诉令性质的行为保全有充分的法律依据，全球禁诉令的签发具有必要性且签发标准适当，因此具有合法性。建议我国在禁诉令的未来适用中进一步提升禁诉令效力范围的可预测性、实施的连贯性和处罚的明确性。

关键词：禁诉令；反禁诉令；FRAND费率；管辖权；标准必要专利

Funding Project: This project is supported by 2022 Key Project of Hunan Provincial Department of Education Scientific Research: \"Conflicts and Resolution between Anti-Suit Injunctions and Anti-Anti-Suit Injunctions in International SEPs\" (22A0079)

Author Profile: Ou Fuyong， from Yongzhou of Hunan， Ph.D.， Professor of Law， Hunan Normal University Law School， research interests: Private International Law， International Economic Law;

Zhang Xiaoxiao， from Changsha of Hunan， Ph.D. Candidate， Hunan Normal University Law School， research interests: Private International Law， International Economic Law.

1 Patent FRAND rates are intended to strike a balance between patent holders and patent implementers. Because the investors have already invested a significant amount of time and money in the patents they have obtained， it is only reasonable that they should be compensated for their efforts. However， because these patents are required for all products to meet industry standards， the owners of these patents may abuse their rights by prohibiting others from using their patents because they do not have a licensing agreement on licensing rates， or by agreeing to an exorbitant license fee. In these cases， the FRAND prices for certain patents are required.

2 Third parties include: Australia; Brazil; Canada; Colombia; India; Indonesia; Japan; Republic of Korea; Norway; Peru; Russian Federation; Singapore; Switzerland; Chinese Taipei; Thailand; Ukraine; United Kingdom; United States; Viet Nam.

3 Chapter 9， Article 103 of the Civil Procedure Law of the People's Republic of China 2023.

4 Conversant is a company incorporated under the laws of Luxembourg， with a portfolio of patents pertaining to several standards. Conversant obtained these patents from the original holder， Nokia， and both parties have signed FRAND commitments. The other party， Huawei， is a Chinese firm that uses these patents to manufacture its products.

5 Conversant Wireless Licensing SARL v. Huawei Technologies Co Ltd amp; Ors [2018] EWHC 808 (Pat) (EWHC (Patents)).

6 Conversant Wireless Licensing SARL v. Huawei Technologies Co Ltd amp; Ors [2018] EWHC 1216 (Ch) (EWHC (Ch)).

7 Huawei Technologies Co Ltd amp; Ors v. Conversant Wireless Licensing SARL， (2018) Su 01 Min Chu 232， 233， 234 Hao.

8 Conversant v. Huawei， Düsseldorf Regional Court Caso No 4bb O 30/18 (27th August 2020).

9 Huawei Technologies Co Ltd amp; Ors v. Conversant Wireless Licensing SARL， (2019) Zui Gao Fa Zhi Min Zhong 732， 733， 734 Hao.

10 OPPO， a Chinese smartphone manufacturer， is a global leader with a diverse variety of smartphone products sold in more than 50 countries and regions. And it holds numerous patents in this field as well. Sharp is a Japanese telecommunications company that has a number of patents that are critical to 3G/4G/5G/Wi-Fi standards.

11 Guangdong OPPO Mobile Telecommunications Corp.， Ltd v. Sharp Corporation and Scienbizip Japan Corporation， (2020) Zui Gao Fa Zhi Min Zhong 517 Hao.

12 Guangdong OPPO Mobile Telecommunications Corp.， Ltd v. Sharp Corporation and Scienbizip Japan Corporation， (2020) Yue 03 Min Chu 689 Hao.

13 Unwired Planet Intl. Ltd. v. Huawei Techs. Co. Ltd. (Unwired Planet I) [2017] EWHC (Pat) 711 (Eng.)， aff'd Unwired Planet Intl. Ltd. v. Huawei Techs. Co. Ltd. (Unwired Planet II) [2018] EWCA (Civ) 2344 (Eng.).

14 TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson， No 8:14-cv00341， 2017 WL 6611635 (C.D. Cal.， Dec. 21， 2017).

15 TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson， Appeal Nos. 2018-1363， et al. (Fed. Cir. Dec. 5， 2019).

16 Optis Wireless Technology， LLC et al. v. Huawei Technologies Co. Ltd. et al.， No 2:2017cv00123-Document 214 (E.D. Tex. 2018).

17 E. amp; J. Gallo Winery v. Andina Licores S.A. 446 F.3d 984， 991 (9th Cir. 2006).

18 Microsoft Corp. v. Motorola， Inc. (Microsoft II)， 696 F.3d 872， 881 (9th Cir. 2012).

19 In Re Unterweser Reederei GMBH， 428 F.2d 888， 890 (5th Cir. 1970)， aff'd on reh'g， 446 F.2d 907 (5th Cir. 1971)， rev'd on other grounds sub nom. M/S Bremen v. Zapata Off Shore Co.， 407 U.S. 1 (1972).

20 Lenovo v. Nokia， (2020) Yue 03 Min Chu 5105 Hao. The decision is published in March 2022 on the website of the IP Court of the Supreme People's Court.

21 Supra note ⑨.

22 Xiaomi Corporation amp; ors. v. InterDigital Technology Corporation， (2020) E 01 Zhi Min Chu 169 Hao.

23 Supra note ⑪.

24 Samsung Electronics Co. Ltd. V. Ericsson Inc.， (2020) E 01 Zhi Min Chu 743 Hao.