The dilemma and improvement of anti-suit injunctions in standard-essential patent litigation in China

Abstract

Allocating jurisdiction and harmonizing anti-suit injunctions (ASIs) in concurrent litigation is a challenging task due to the complex and transnational nature of standard essential patent (SEP) licensing concerns. Notably, in the case of Huawei v. Conversant, the supreme people's court (SPC) of China demonstrated ingenuity by applying the act preservation system to issue the country's first ASI. This was done using a “five-factor framework” that considered the fairness and necessity of preservation measures, the parties’ interests, the public interest, and international comity. Chinese courts have subsequently utilized this framework in several cases to issue ASIs with more extensive and varied scopes. This shift indicates China's transition from a passive recipient to an active participant in ASI matters. Nevertheless, it is important to note that China lacks a legal foundation that explicitly permits the use of ASIs, necessitating further clarification regarding their circumstances of application.This article argues that directly applying the act preservation system to the ASI system lacks sufficient justification or may be constrained by the law, thereby granting judges greater discretion. By comparing Chinese ASI with traditional Western ASI, it becomes apparent that the impact of act preservation does not extend to international litigation and is more akin to an “injunction,” restricting the parties’ tort. Consequently, China should adopt a construction model of the act preservation system, incorporating the guiding principles of the ASI system, as well as the supporting appeal and retrial system, into its Civil Procedure Law. Additionally, providing judicial interpretation to elucidate the specific conditions for ASI application would be beneficial. These efforts have the potential to foster the development of a more predictable and stable international patent system. This, in turn, would benefit both patent owners and implementers, promote innovation, and facilitate global economic development.