Aubrey, Guledjian & Huang on Antisuit Injunctions

Anne-Raphäelle Aubrey, Tigran Guledjian, and Eric Huang have published an article titled Anti-Suit Injunctions in the United States in the SEP and FRAND Context:  Recent Developments and Overview, GRUR-Patent 2024, 343.  Here is the abstract:

This article discusses the use of anti-suit injunctions (ASIs) and the use of ASIs in the context of Standard-Essential Patents (SEPs) and Fair, Reasonable, and Non-Discriminatory (FRAND) licensing disputes.  First, we introduce anti-suit injunctions and outline the three-step test for assessing the propriety of an ASI in the United States, which includes satisfying two threshold requirements, applying the “Unterweser” factors, and assessing the injunction’s effect on international cmity.  Second, we discuss specific cases in which U.S. courts addressed request for anti-suit injunctions in the FRAND context and consider the factors these courts relied on to grant or deny anti-suit injunctions.  Third, we summarize the recent February 2024 Ericsson v. Lenovo decision int eh Eastern District of North Carolin.  We consider the Court’s reasoning for declining to issue and anti-suit injunction against Ericsson and how this decision first in with previous U.S. anti-suit injunction cases.  Finally, we consider how the U.S. approach to ASIs differs from approaches in China and Europe.

The decision the authors refer to, Ericsson v. Lenovo, can be accessed here, and was also the subject of a post on ip fray in February.  Lenovo US and Motorola Mobility sought an ASI against Ericsson’s enforcement of preliminary relief granted by courts in Brazil and Colombia.  In denying the request, the court distinguished the Ninth Circuit’s 2012 decision in Microsoft v. Motorola on the ground that, in the present action, the granting of an ASI would not necessarily be dispositive of the litigation, since Lenovo had not committed to accepting the U.S. court’s possible determination that Ericsson’s offer is FRAND.

Also in the same issue of GRUR-Patent is the second part of Dr. Leistner’s article on SEPs and the UPC, which I noted earlier this week, and a short commentary by Dr. Johann Pitz on the BGH’s decision on extraterritorial damages in its Judgment of May 7, 2024, X ZR 104/22— Verdampfungstrockneranlage, which I previously discussed here.