Some Recent "China Patents & Trademarks" Articles on Antisuit Injunctions

Issues 2 and 3 of the 2021 volume of the quarterly China Patents & Trademarks contain three English-language articles on antisuit injunctions.  None of the three appears to be available online yet, unfortunately.

1. Professor Zhang Guangliang published Application of Behaviour Preservation in International IP Parallel Litigation, China Patents & Trademarks, No. 2, 2021, pp. 8-15.  The article discusses the Supreme People's Court's 2020 decision in a case between Huawei and Conversant, upholding a "behaviour preservation order" (a/k/a antisuit injunction) that Conversant not enforce a judgment in Düsseldorf.  (The decision has been covered elsewhere; see my article Is Global FRAND Litigation Spinning Out of Control?, 2021 Patently-O L.J.1, at p.20 n.67 for citations to other discussions.)  Professor Guangliang's article sets out the SPC's five-factor test ("impact of the enforcement of the judgment made by an extraterritorial court on litigation in China," the "necessity of behaviour preservation measures," a "reasonable balance of interests," whether the measure would "harm the public interest," and "consideration of international comity"), discusses its application in that case, and compares the SPC's factors to standards in other countries including the U.S.  He concludes with some suggestions for improvement, including determining the appropriate security to be posted.

2. Liao Jibo also discusses the above case in some detail in an article titled Probe into Anti-Suit Injunction in China at pp. 20-26 of that same issue.  He concludes that antisuit injunctions are "a vital part of the modern litigation system and of utmost importance for safeguarding a nation's judicial sovereignty and guiding international litigation rules," but also that Chinese courts will take a "cautious and rational judicial attitude" toward them and that further cases will help to clarify the law.

3. Finally, Professor Li Yang published Calm Reflections on Construction of Anti-Suit Injunction Rules in SEP Disputes, China Patents & Trademarks, No. 3, 2021, pp. 84-94.  The article distinguishes among antisuit injunctions, anti-enforcement injunctions, and anti-antisuit injunctions, and provides an overview of global case law through the first few months of this year, including the emerging trend in Munich for German courts to find the use or threatened use of antisuit injunctions as evidence of an unwillingness to license  The author strikes a cautionary note, expressing concern over the potential for a flurry of motions for anti- and anti-antisuit injunctions will increase litigation costs and cause friction among parties and nations; at the same time, he emphasizes the tension between global rate setting and the territorial nature of patents.  He urges further study of the legal basis for granting antisuit injunctions, clarifying the requirement for these injunctions, and improving the procedures for handling requests for and appeals from antisuit injunctions.  Thoughtful paper.