Thursday, March 31, 2022

Some New Papers on Antisuit Injunctions, SEPs

1.  Giuseppe Colangelo and Valerio Torti have posted a paper on ssrn titled Anti-suit Injunctions and Geopolitics in Transnational SEPs Litigation.  Here is a link to the paper, and here is the abstract: 


         Anti-suit injunctions (ASIs) have recently emerged as a phenomenon significantly affecting the dynamics of standard essential patent (SEP) litigation. The enhanced role played by these patents in the Internet of Things scenario and the willingness of national courts to set themselves up as global licensing tribunals have spurred a race to the courthouse, incentivising forum shopping and the adoption of countermeasures such as anti-anti suit injunctions (AASIs) and anti-anti-anti suit injunctions (AAASIs). The implications of these litigation strategies have become a matter of geopolitics, as countries fear that the intellectual property rights of their companies may be undervalued by foreign courts to promote domestic economic interests. Against this backdrop, this paper aims to provide a comparative overview of European, U.S., and Chinese SEP disputes in which these injunctions have been issued or claimed and to identify some policy recommendations to curb the frictions affecting SEP licensing.

2.  Igor Nikolic has posted a paper on ssrn titled Global Standard Essential Patent Litigation:  Anti-Suit and Anti-Anti-Suit Injunctions  Here is a link to the paper, and here is the abstract:

            The global litigation of standard essential patents (SEP) is taking a new turn with the jurisdictional battle between national courts. Some courts have started issuing anti-suit injunctions (ASI) to prohibit parallel litigation and consolidate the dispute at a single venue, while others have retaliated with anti-anti-suit injunctions (AASI), barring parties from seeking or enforcing foreign ASIs. The anti-suit injunction saga benefits no one: the parties in SEP licensing disputes are faced with legal uncertainty as to which court will hear their case; it incentivises a race to the court to secure the most favourable jurisdiction instead of focusing on licensing negotiations; it increases litigation costs of having to pursue multiple ASIs and AASIs; and parties face fines and imprisonment of officials for non-compliance. The article examines the general conditions for the grant of ASIs and AASIs and analyses their application in SEP disputes. The article then proposes three measures that courts can take to stop the global jurisdictional race. First, courts should exercise judicial restraint and return to the originally strict criteria for the granting of ASIs. In principle, ASIs in SEP cases should not be granted as they are incompatible with international comity, fundamental rights to property and access to a court. Only anti-enforcement injunctions may exceptionally be granted, and under strict conditions. Second, a court could hold a party seeking an ASI as ‘unwilling’ to license, acting as a strong deterrent from seeking this type of remedy. Third, courts could encourage parties to agree on the arbitration of FRAND licensing terms by holding that an unjustified refusal to enter into arbitration is a sign of ‘unwillingness’ to license. Taking these principles into account would ensure that each national court is respected and would incentivise parties to focus on the resolution of the key issue behind every SEP dispute – the appropriate FRAND licensing terms.

3.  Thomas Wein has posted a paper titled Frand Conditions - Applying the Concept of Subgame Perfect Nash Equilibria.  Here is a link to the paper, and here is the abstract:


            Holders of standard-essential patents must provide access to potential licensees on fair, reasonable, and non-discriminatory terms (FRAND). In the context of industrial economics, standardization shifts the demand curve outward. On one hand, profits from standardization can flow to the owners of SEPs, since potential licensees are dependent on the respective patent (hold up). On the other hand, the licensee gains an advantage if the owner is not sufficiently compensated for his innovation and standardization costs (reverse hold up). Standardization can also increase the market power of all standard users, and thus generate excessive prices.The Huawei/ZTE ruling of the European Court of Justice prescribes a strict sequential game for SEP owners and SEP users, which they must follow step-by-step in order to make demands and submit offers. The game theoretical backward induction generates two conceivable subgame perfect solutions. Either both parties enter into negotiations with requests or offers that they consider acceptable under competition law, and the courts or third parties decide in favor of one of the two parties, or both parties overdo it—patent owners demand too much, and patent users offer too little—and the courts or third parties take the side of one of the two parties. The latter is highly problematic in terms of legal policy because the rules of the ECJ do not generate sufficient pressure to force cooperation between the parties.

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