I've taken a couple of weeks off of blogging--and reading blogs--so it was only last night that I learned about the recent developments in the Wuhan Intermediate People's Court and the U.S. District Court for the Eastern District of Texas involving Ericsson and Samsung. If I understand correctly, based on posts I have now read by Mark Cohen on ChinaIPR, Florian Mueller on FOSS Patents (here, here, and here), and Gene Quinn on IP Watchdog, which are themselves based on the pleadings filed in the Texas action, Samsung initiated an action in Wuhan on December 7, asking the court to establish the terms of a global FRAND license; Ericsson filed suit in the U.S. on December 11, but (in accordance with Chinese law) was not informed of the Wuhan action until a few days later; the Wuhan court issued an ex parte antisuit injunction on December 25 (which, according to Samsung, Ericsson can ask the Chinese court to modify, albeit after-the-fact); and the Texas court issued a TRO against Samsung on December 28. There will be a hearing later this week on whether to convert the TRO into a preliminary injunction.
While we wait to see how all of this plays out, I am working on a short paper outlining what I view as some of the ongoing problems with global FRAND disputes, including the inevitable frictions resulting from parties seeking antisuit and anti-antisuit injunctions around the world. Ideally, in my view, there would be some sort of global tribunal to adjudicate FRAND cases, along the lines Jorge Contreras has advocated and in accordance with some common, agreed-upon methodology. But this is a long-term goal; for now the nations of the world don't have a common, agreed-upon methodology for determining FRAND rates, and I'm not aware of any efforts in progress to establish a global tribunal. Thus, while I'm inclined to think that a system in which courts take upon themselves the burden of establishing global rates, absent consent of the parties--and issue anti- and anti-antisuit injunctions to preserve their jurisdiction to do so--is not, in the long run, sustainable, things may just have to get a lot worse before we see any progress in developing a solution.
Update: Further coverage today on Bloomberg Law and Law360.
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