The United States, Japan, and Canada have now asked to join the EU consultation request with China at the WTO regarding Chinese practices in issuing anti-suit injunctions (“ASIs”) for standards-essential patents (SEPs). Here is the link to the WTO page describing the dispute. The three submissions to the WTO were all dated March 4, 2022.
Terence P. Stewart, one of the leading trade lawyers in Washington DC, has noted that the EU request is subject to the Multi-Party Interim Appeal Arbitration Agreement (MPIA), established by some members of the WTO during the period that the WTO appellate body has not been functional. Thus, there is a possibility of an appeal route of any initial decision in this dispute, rather than to a non-functional WTO appellate body.
There may be other potentially interested parties in the dispute, due to their status as licensors or because their courts have been previously affected by SEP-related ASIs. According to USPTO data, Samsung and LG are both major participants in 5G SEP licensing. The United Kingdom is a major litigation destination for 5G licensing, which could be affected by the aggressive use of ASIs. An Indian court also actively opposed a Chinese court’s imposition of an ASI in Xiaomi v. InterDigital. SEP licensors have also been known to bring cases in a range of other jurisdictions to put pressure on potential licensees, including Australia, Malaysia, and Brazil. A number of WTO members joined the prior licensing-related case that the United States filed against China, including Australia, Brazil, Canada, Egypt, European Union, India, Japan, Kazakhstan, South Korea, New Zealand, Norway, Russian Federation, Singapore, Switzerland, Taiwan, Turkey, and Ukraine.
This case may also attract the interest of other WTO members interested in the role of “transparency” in resolving IP-related disputes. Prior to China’s WTO accession, Prof. Sylvia Ostry of Canada wrote an important article on the need for a transformation in Chinese administrative transparency practices to accommodate WTO disciplines. “Before China’s full and effective WTO integration will be possible”, she wrote, “the country will be required to undergo an extensive transformation. Without such transformation, Chinese accession could be seriously damaging to the long-term viability of the WTO.” To judge by programs that I have attended over the past several months, this case could be of continuing interest to students, practitioners, and scholars of trade law, public international law, comparative law, and conflicts of law.
The opinions herein are the author’s own.