Study on Anti-Suit Injunction of Standard Essential Patents in

International Parallel Litigation

Jiayi Ye

Faculty of Law and Politics, Zhaoqing, Guangzhou College of Applied Science and Technology, Guangdong, China

Keywords: International Parallel Litigation, Standard-Essential Patents, Anti-Suit Injunction.

Abstract: Currently, standard essential patents occupy a central position in the field of communications, and the

international parallel litigation and anti-suit injunction issues arising therefrom are one of the key topics of

today's research. This study focuses on the root causes of the conflict arising from the antisuit injunction,

compares and discusses the judicial practices of the United Kingdom, Germany, and China as well as the

systems of each country, and reveals the similarities and differences in the functions and considerations of the

anti-suit injunction. The study found that the frequent application of antisuit injunctions exacerbates

jurisdictional gaming. The study proposes that a balance should be struck between the protection of

intellectual property rights and the judicial sovereignty of each country by improving the uniformity of the

standards for the issuance of injunctions and promoting the mechanism of international negotiations and

judicial collaboration.

1 INTRODUCTION

With the rapid development of the information

technology industry, standard essential patents have

become one of the core competitive elements of

enterprises. This has led to a series of standard

essential patent litigations worldwide, in which anti-

suit injunction has become the core issue of

controversy in both theoretical and practical circles.

In 2020, the Supreme People's Court of the People's

Republic of China issued its first interim measures

like an injunction in the patent dispute between

Conversant and Huawei. The Supreme Court's

considerations in the decision consisted of the impact

of the provisional enforcement of the extraterritorial

judgment on the Chinese litigation, the necessity of

the interim measure, the balance of public and private

interests, and the principle of international comity. In

response to the considerations for anti-suit

injunctions, which vary from country to country, U.S.

scholars have summarized the considerations for

conservatism in U.S. courts as the consistency of

domestic and foreign litigation, the feasibility of

resolving the foreign issue, the bona fide nature of the

applicant, and the balance of international comity and

foreign sovereignty (Contreras, 2019). The

commonality lies in the fact that the principle of

international comity is one of the factors to be

considered, whereas the United States courts give

discretion to the examiners, and the Chinese courts

hold a cautious attitude towards the anti-suit

injunction, and this difference leads to the courts of

various countries' resistance to the anti-suit injunction

and disrupts the international order. In this paper, the

theoretical research method and case study method

are applied to take the overview of standard essential

patent anti-suit injunction as the starting point,

compare the examination standards and attitudes of

China, Britain, and Germany in the judicial practice

of issuing anti-suit injunctions, and discuss the

relevant principles of applying anti-suit injunctions,

to propose a conflict resolution solution and cross-

border collaboration mechanism. This reduces the

number of situations in which there is a race to the

bottom regarding anti-suit injunctions, safeguards the

interests of enterprises, and regulates the international

order.

2 LITERATURE REVIEW

Due to the legal nature of the FRAND principle, there

is no agreement between the theoretical and practical

communities. Issues surrounding jurisdiction over

418

Ye, J.

Study on Anti-Suit Injunction of Standard Essential Patents in International Parallel Litigation.

DOI: 10.5220/0014382600004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 418-423

ISBN: 978-989-758-785-6

license rates. It has been argued that the assertion of

jurisdiction by multiple courts has resulted in

differences in the outcome of the decisions and has

impacted the principle of international comity, with

courts competing on a bottom-by-bottom basis and

constantly lowering their policies and standards in

order to compete for jurisdiction. The scholar builds

on this by proposing that national courts in countries

or regions should be limited to having jurisdiction

only over their locally issued patents, i.e., the

principle of territoriality, and that national courts set

royalties in accordance with their policy national

circumstances (Greenbaum, 2019). Other scholars

have argued for the introduction of election clauses in

FRAND documents. The FRAND document can be

considered a contract, and it is a breach of contract to

proceed in a court other than the one chosen for the

clause. This move can reduce costs due to injunction

litigation (Tsang & Lee, 2019). Other scholars

advocate establishing a global FRAND rate

arbitration tribunal, arguing that this institution

effectively regulates the international order, which

evaluates the patent information of the parties and

sets the rate corresponding to the value of the patent.

It is conducive to reducing the loss of enterprises,

reducing the competition between courts, and

promoting the parties to the dispute to resolve the

dispute in a calm and friendly attitude (Contreras,

2019).

On the issue of how China can improve the system

of anti-suit injunctions and anti-anti-suit injunctions,

some scholars have suggested that the practice of

German courts of countering the injunction of other

countries by issuing anti-suit injunctions is a

legitimate defense. China should learn from the

method of Germany's anti-anti-suit injunctions,

improve the interim measures system based on

Article 103 of the Civil Procedure Law, introduce the

concept of self-defense into the Civil Code, and attach

the remedy of temporary injunction, i.e., accessory

theory, to Article 72 of the Patent Law, Property

Preservation (Zhang, 2023). Other scholars have

suggested that the nature of interim measures is an

injunction rather than an anti-suit injunction, and if it

is based on Article 103 of the Civil Procedure Law of

the People's Republic of China, it lacks a solid ability

to prove. The scholar advocates introducing the

concept of the principle of inconvenience into Article

530 of the Interpretation of the Supreme People's

Court on the Application of the Civil Procedure Law

of the People's Republic of China on the

circumstances under which the plaintiff's suit is

rejected by the courts in China, which should be

formulated by way of a comparative approach to the

rules and should not be too detailed (Song, 2023).

3 OVERVIEW OF STANDARD

ESSENTIAL PATENT ANTI-

SUIT INJUNCTION AND

JUDICIAL PRACTICE

3.1 Overview of Standard Essential

Patent Anti-Suit Injunctions

The anti-suit injunction originated in the English

courts of equity and dates back as far as the 14th and

15th centuries. Courts of equity have developed

remedies based on justice of conscience in order to

fill gaps in the remedies of the common courts. An

anti-suit injunction is initially used to resolve

jurisdictional disputes where the parties have already

filed suits in multiple domestic courts. Designed to

prevent parties from abusing the litigation process or

disrupting the judicial process. In the nineteenth

century, the application of the injunction system

shifted the scene from issues of domestic jurisdiction

to issues of foreign jurisdiction.

Based on their different functions, anti-suit

injunctions can be categorized as defensive,

offensive, and anti-anti-suit injunctions. Defensive

anti-suit injunctions are issued on the condition that

there is a possibility that courts in other countries will

interfere with domestic litigation, and their

characteristics can be examined in terms of

counteracting malicious anti-suit injunctions in other

countries as well as safeguarding the lawful rights and

interests of enterprises and the jurisdiction of the state

(Ning & Gong, 2021). An offensive anti-suit

injunction applies when a court of a state finds that a

foreign court does not have jurisdiction over the

action. Some scholars point out that the anti-suit

injunction is completely weaponized in the litigation.

Referring to OPPO v. Sharp, OPPO did not claim

infringement in Chinese courts, and China still

determines the jurisdiction of the Shenzhen court to

set the global FRAND licensing rate, and the rate is

lower than other equivalent rates (Zheng, 2022). Anti-

anti-suit injunctions are frequently used in German

litigation. Anti-anti-suit injunctions are relatively

more peaceful in nature than injunctions and are

countermeasures against two conditions: an

injunction issued by a foreign court or the possibility

of an injunction being issued.

Study on Anti-Suit Injunction of Standard Essential Patents in International Parallel Litigation

419

3.2 Judicial Practices and Experiences

of Anti-Suit Injunctions for

Standard-Essential Patents in and

Outside the Nation

3.2.1 UK Court Rules Global License Rates

Cooperate with Anti-Suit Injunction

Regime

The power of the English courts to grant injunctions

is based on section 37 of the English High Court Act

1981 and section 44 of the English Arbitration Act

1996, which empower judges to grant anti-suit

injunctions where it is convenient and fair to do so. In

addition, when the reality is urgent, the judge, on the

basis of the application of the parties, is authorized to

issue a decision on the preservation of the act. The

dual national and global nature of FRAND license

rates was exacerbated by the UK High Court's

decision in Unwired Planet v. Huawei to calculate a

global license rate, which set a precedent for setting

global license rates (Colangelo, 2024). The English

court in Optis v Apple brought forward the granting

of the injunction until the FRAND trial. Although the

defendant argued that the prevailing process was to

issue the anti-suit injunction only after the conclusion

of the FRAND trial, the court found that the

infringement persisted and that the timing of the early

issuance of the injunction effectively safeguarded the

patent holder's legitimate rights and interests and

simplified the court's trial process. And if the

implementer is unwilling to accept the license or is

examined by the English courts as an unwilling

licensee, the courts will simply issue an anti-suit

injunction. For the patent holder, the patent holder

still has the right to seek an injunction

extraterritorially, regardless of whether the license

rate is acceptable or not. Thus, the court's practice

treats the patentee favorably regardless of whether the

implementer accepts the license or not.

3.2.2 German Courts Take

Countermeasures to Uphold

Jurisdiction

Basis for issuing an anti-suit injunction exists in both

the German Constitution and the Civil Code. The

cause of anti-suit injunction cases is infringement,

and rights other than life, body, health, liberty, and

ownership are systematically summarized in Section

823 of the German Civil Code as other rights, and

intellectual property rights fall within the category of

other rights. Section 227 of the German Civil Code

(BGB) defines self-defense as a stopping action taken

by a party to protect itself from harm or to reduce

harm. Under Article 47 of the Charter of Fundamental

Rights of the European Union, individuals have

access to justice and remedies when their rights are

violated. In 2019, a lawsuit was filed by Continental

in the U.S. District Court for the Northern District of

California alleging that Nokia's failure to comply

with its FRAND obligations constitutes unfair

competition and requesting the U.S. court to issue an

anti-suit injunction against it. In the same year, Nokia

filed a request for an anti-anti-suit injunction in

proceedings before the Munich District Court. In

contrast to the rejection of anti-suit injunctions in

previous cases, this case demonstrates the positive

attitude of German courts towards anti-suit

injunctions. The Munich District Court issued an anti-

injunction order, without hearing the conditions of the

hearing, against the injunction order issued by the

United States Court of Northern California. German

courts have demonstrated to other courts around the

world a shift in position from rejecting the ordering

of anti-suit injunctions to supporting the use of anti-

suit injunctions to safeguard judicial sovereignty as

well as the lawful rights and interests of businesses.

3.2.3 Chinese Courts Open to Adjudicating

License Rates

Our courts currently issue injunctions on the basis of

Article 103 of the Civil Procedure Law of the People's

Republic of China, which states that a court in China

may, on the application of one party, make a ruling

against another party on an act or omission with

respect to certain conduct. The first injunction was

issued by the Supreme Court of China in Conversant

v. Huawei, in which the judge considered five aspects

of the case, with the core factor being the likelihood

of extraterritorial infringement, and the refinement of

the elements could provide a theoretical framework

for subsequent related IPR cases (Cui, 2023). The

judge set up a penalty system in this case whereby the

respondent would be penalized with a per diem fee

for failure to act. The Oppo v. Sharp case formalized

the authority of Chinese courts to award global

licensing rates for standard-essential patents, thus

shifting the attitude of Chinese courts towards anti-

suit injunctions. Awarding global royalty rates first

occurred in the United Kingdom, and judging from

past cases in China, Chinese courts were cautious

about awarding global royalty rates, but in Oppo v.

Sharp, the Chinese court awarded global royalty rates

despite repeated appeals by the opposing party. After

the verdict of this case was announced, some scholars

criticized the Chinese courts for using the anti-suit

ICPLSS 2025 - International Conference on Politics, Law, and Social Science

420

injunction as a weapon at the international IPR level,

which is very threatening and offensive (Zheng,

2022). Chinese courts have transformed from IPR

followers to international IPR rule leaders.

4 DILEMMAS AND CONFLICT

RESOLUTION MECHANISMS

OF STANDARD ESSENTIAL

PATENT ANTI-SUIT

INJUNCTION

4.1 The Dilemma of Standard Essential

Patent Anti-Suit Injunction

4.1.1 Differences in Issuance Criteria from

Country to Country

The conditions under which courts issue anti-suit

injunctions or anti-anti-suit injunctions vary from

country to country. This paper argues that the relevant

behavioral preservation system in the Code of Civil

Procedure should be refined rather than

reconstructing a new injunction system. It can be

dialectically understood that there is a correlation

between the formulation of the behavioral

preservation system and the meaning of an injunction.

The scope of application of the injunction should be

strict, provided that there is international parallel

litigation and cases with a link to our country are

considered for application of the anti-suit injunction

(Yuan & Pan, 2024). English law issues anti-suit

injunctions in two situations. The first is where the

parties have agreed in a contract to choose or not to

choose a particular forum, and the existing litigation

is in breach of the jurisdictional terms of the contract.

The second is where there is duplication of

international parallel litigation, which the English

courts have found to be harassing and coercive

(Cotter, 2021). The act of issuing an anti-anti-suit

injunction order by a German court is a counteraction

to an anti-suit injunction, and the three conditions that

must be met for the issuance of an anti-suit injunction

order are reasonable jurisdiction, the existence of the

possibility of an injunction order being issued by the

foreign court or the issuance of an injunction order,

and the filing of a request by the parties for an anti-

suit injunction order (Zhang, 2023). Combining the

different considerations of the above three countries

as well as the relevant judicial practice, we can

summarize that the British courts are inclined to

safeguard the rights of patent holders, the German

courts take countermeasures to safeguard the judicial

sovereignty of their own countries, while our

country's attitude is more cautious.

4.1.2 Lack of International Collaborative

Mechanisms

The current controversy over standard-essential

patents shows a tendency towards fragmentation, and

there is an urgent need to bring the fragments together

(Bonadio & Contardi, 2024). In related infringement

disputes, the parties argue about the level of the

license rate, the validity of the patent, the existence of

infringement, and the right to award a global license

rate, among other things. This article further analyzes

the reasons for the conflict in the following sections.

Patents are territorial in nature, and courts in different

regions and countries may adjust the calculation of

royalty rates according to their characteristics, and

disputes arise between litigants over the level of

royalty rates. One of the reasons for inaccurate

licensing rates is that courts do not have access to

transparent and publicly available patent information.

Differences in the validity of patents are due to

differences in the standard of review, where the same

patent action that is found to be infringed by a court

in one country may be held to be the opposite by a

court in another country. These cases demonstrate the

bias of national courts towards holders and enforcers

of patents, which compete to set global license rates.

The regions of China, Germany, and the United

Kingdom have become a race to the bottom for

injunctions, and the possibility exists for India to join

the race. The deep-seated reason for this phenomenon

is the lack of international collaboration and the lack

of a unified patent mutual recognition body, resulting

in patents being protected only within a certain

geographical area. The emergence of international

parallel litigation not only increases the litigation

costs of the parties but also reduces the judicial

efficiency of the courts.

4.2 Mechanisms for Conflict

Resolution and International

Collaboration

4.2.1 Harmonization of Standards for the

Issuance of Anti-Suit Injunctions

In the process of negotiation between the patent

holder and the implementer, an anti-suit injunction

will serve to stop the continued infringement by the

implementer in the event that the two parties are

unable to reach an agreement (Bonadio & Contardi,

Study on Anti-Suit Injunction of Standard Essential Patents in International Parallel Litigation

421

2024). By summarizing the considerations that the

courts of the above three countries take into account

in granting anti-suit injunctions, it is possible to form

a more complete set of criteria for granting them.

First, the issuance of an anti-suit injunction

presupposes the existence of international parallel

litigation, i.e., where the same litigants are litigating

in more than one district because of the same claim.

Secondly, to rationalize the allocation of jurisdiction,

the principle of forum inconveniences should be a

priority consideration, and the court should examine

on its own initiative whether there is a link between

the case and its own country and the magnitude of the

link that exists, and the court that determines that it is

inconvenient to have jurisdiction should suspend the

proceedings. The principle of the doctrine of court

received first was applied after it, with the first court

to be received having the power to hear the case first.

Next, the principle of proportionality is introduced to

examine the necessity, appropriateness, and least

prejudice of issuing an injunction, balancing the

interests of the parties by introducing the principle of

proportionality (Bonadio & Contardi, 2024). Then,

the licensee and the patentee are examined to see

whether they are acting in good faith. Patent holdout,

where the patent implementer refuses to negotiate,

maliciously delays and deliberately lowers the license

rate, and patent hold-up, where the patent holder

unreasonably raises the license rate, will be regarded

as not acting in good faith. Finally, the principle of

international community serves as a bottom line, and

states should take the issue of comity into account at

any point in the proceedings.

4.2.2 Establishment of the Uniform

Adjudication FRAND License Rate

Authority

An effective measure to solve the lack of international

collaboration mechanisms is to actively seek

international cooperation. Referring to the Unified

Patent Court of Europe (UPC), establish a unified

body to adjudicate FRAND license rate. Firstly, it is

the role of the patent office to collect, for example,

commercial information on patent specifications and

technical versions, and to increase openness and

transparency so that experts can properly assess

whether patents are standardized and essential (Jacob

& Nikolic, 2023). Currently, to ensure the continued

validity of patents, patent holders are required to pay

annual maintenance fees to the Intellectual Property

Office and may face the conversion of different

currencies. Once the agency is operational, patent

holders will only be required to pay a flat annual fee

and maintenance fee to the agency. In addition, the

agency has the authority to calculate license rates

based on a combination of cost analysis and

commercial information for patents that have been

successfully registered and found to be standard and

essential. The agency may calculate a global standard

rate or a range for the patent, and different

implementers may face different license rates, but the

license rates they are required to pay will be within

the initially determined range. Finally, one of the

agency's responsibilities is to encourage holders and

implementers to resolve FRAND license rate disputes

through consultation and negotiation. If negotiations

between the two are not possible, or if the two parties

never reach an agreement, the agency will adjudicate

patent disputes in a uniform manner, which is

expected to reduce the emergence of international

parallel litigation, lower the cost of litigation, and

improve fairness and certainty.

5 CONCLUSION

Although anti-suit injunctions are said to be directed

only at litigants, there has been a tendency in recent

years for States to compete for jurisdiction. This

paper adopts the theoretical research method and case

study method to compare the judicial practice of

various countries, and summarizes that the

international comity principle is one of the

considerations for the issuance of anti-suit injunction

in the disputes of standard essential patents in various

countries, and that the British court treats the review

standard of anti-suit injunction as more inclined to

support the patent holder. In Germany anti-suit

injunctions are usually issued with a countervailing

effect, emphasizing the examination of the risk of first

infringement in a dispute. Chinese courts are oriented

towards safeguarding the judicial sovereignty of the

State and the legitimate interests of enterprises, and

issue anti-suit injunctions on the basis of behavioral

preservation. This paper further elaborates on the

dilemma of non-uniformity of issuance standards and

the lack of an international collaborative mechanism

in disputes over anti-suit injunctions. Based on this,

this paper proposes the harmonization of the issuance

standard of injunction and the setting of FRAND

license rate institutions through international

collaborative mechanisms. The implementation of

this recommendation is expected to improve judicial

efficiency, reduce the cost of transnational litigation,

balance the interests of both parties to a certain extent,

and promote friendly consultation and negotiation

between the litigating parties. Future research can

ICPLSS 2025 - International Conference on Politics, Law, and Social Science

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expand the research sample to include the United

States, India, and other regions with frequent disputes

over standard-essential patents so as to improve the

global nature of the research and facilitate the in-

depth study of the topic.

REFERENCES

Bonadio, E. & Contardi, M. 2024. The Unified Patent Court

and Standard Essential Patents. European Intellectual

Property Review.

Colangelo, G. 2024. The Politicization of IP Protection:

The Case of Standard Essential Patents. SSRN.

Contreras, J.L. 2019. Global Rate Setting: A Solution for

Standards-Essential Patents. Washington Law Review

94: 701-751.

Contreras, J.L. 2019. The New Extraterritoriality: FRAND

Royalties, Anti-Suit Injunctions and the Global Race to

the Bottom in Disputes over Standards-Essential

Patents. Boston University Journal of Science &

Technology Law 25: 251-290.

Cotter, T.F. 2021. Is Global FRAND Litigation Spinning

Out of Control?. Patently-O Patent Law Journal

2021(1): 1-2.

Cui, G.B. 2023. The Application of Anti-Suit Injunction in

Standard Essential Patent Litigation. Intellectual

Property (2): 41-70.

Greenbaum, E. 2019. No Forum to Rule Them All: Comity

and Conflict in Transnational FRAND Disputes.

Washington Law Review 94: 1085-1120.

Jacob, R. & Nikolic, I. 2023. The Future of Standard

Essential Patent Licensing: From Courts to National

Regulators? Intellectual Property Quarterly 4: 252-273.

Ning, L.Z. & Gong, T. 2021. Theoretical Implications and

Practical Responses to the War on Anti-Suit

Injunctions. Journal of Politics and Law 6: 28-38.

Song, J. 2023. The Construction of Anti-Suit Injunction

System in China's Standard Essential Patent Litigation.

China Law Review (1): 216-226.

Tsang, K.F. & Lee, J.A. 2019. Unfriendly Choice of Law in

FRAND. Virginia Journal of International Law 59(2):

220-256.

Yuan, X.T. & Pan, P. 2024. The Application of Anti-Suit

Injunction in International Parallel Litigation of

Intellectual Property Rights: Concepts and Strategies.

Journal of Liaoning University (Philosophy and Social

Science Edition) 52(3): 78-87.

Zhang, H. 2023. The Anti-Anti-Suit Injunction System in

German Standard Essential Patent Litigation and Its

Implications. Intellectual Property Rights (6): 69-85.

Zheng, W. 2022. Weaponizing Anti-Suit Injunctions in

Global FRAND Litigation. George Mason Law Review

30(2): 413-440.

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