China appears to have taken a meaningful step toward complying with the WTO’s DS611 ruling by stepping back from its controversial use of anti-suit injunctions in SEP disputes, with no new ASIs reported since the decision and indications—primarily through WTO statements—that the Supreme People’s Court withdrew the policy. However, implementation remains incomplete. The underlying doctrine has not been clearly repudiated, key judicial materials remain difficult to locate, and earlier decisions continue to be inconsistently published, often in anonymized or unstable form. The WTO arbitrators’ expansive interpretation of “decisions of general application” raises additional concerns, as it extends TRIPS transparency obligations beyond formal precedent in ways that may not align with how Chinese courts actually develop policy. At the same time, the United States’ attempt to narrow transparency obligations was rightly rejected. With parallel developments in Europe and the UK, anti-suit injunctions are no longer uniquely Chinese, but part of a broader global struggle over jurisdiction in SEP disputes. China’s response reflects a cautious retreat rather than a full policy reversal, leaving important questions about transparency, judicial signaling, and future practice unresolved.
Insights on the China/EU TRIPS Dispute: DS/611
I will be a discussant on the recent WTO arbitral decision in DS/611 before a virtual meeting Friends of the Multilateralism Group (FMG). The FMG brings together WTO Ambassadors (past and present), retirees […]
Implications of the Recent WTO Ruling on China’s SEP Practices
The WTO recently released its decision in DS 611, the IP enforcement case involving China’s SEP practices and transparency of China’s judicial decision making. The case makes some progress on China’s important transparency obligations.
CHINESE THREE DIMENSIONAL SEPS: RECENT CASES, THE WTO, AND TRANSPARENCY
Three major court decisions involving SEPS, patents and foreign companies have been recently decided in China. In addition, the EU has recently released two of its submissions to the WTO regarding its dispute with China on antisuit injunctions. Nokia has also announced a global settlement with Oppo. What does the future hold for SEP litigation in China and the WTO dispute?
Australia, US, and EU Submissions at the WTO on China and Anti-Suit Injunctions
By assembling the briefs submitted by the EU, Australia and the United States in the WTO case DS611, a stark difference in approach emerges between the United States and the EU/Australia. It appears that the United States is allying itself more closely with China, perhaps with a goal of limiting WTO jurisdiction in certain areas. At the same time, however, the United States appears to be retreating on its long-held commitments to increasing transparency in China’s judicial and legal system.
SAMR’s “Choreography” of SEP AML Rulemaking
How should one understand the overlapping rules enacted by SAMR on IP, SEPS and antitrust? Is a new wave of legislation under way? Is China planning on ramping up antitrust enforcement in SEPs? What do these legislative experiments portend in terms of China’s commitments to rule of law and the challenges faced by high tech companies – whether implementer or licensor in China?
Transparency in the Chinese Courts on IP: My new article on “The Case of the Missing Cases”
China’s judicial database is a valuable tool to understanding China’s legal regime for intellectual property. However, a significant cohort of cases are unpublished. This article written by me and published by the Hinrich Foundation, discusses how to use this and other databases effectively, while at the same time recognizing that there may be limits to their overall comprehensiveness.
My Reflections on Testifying Before Congress – 2023
Over the course of the last three months, I spoke at a trifecta of Congressional hearings: the House Judiciary Committee, the Senate Judiciary Committee, and the Congressional US-China Economic and Security Review Commission. Before I had testified I was pessimistic about the prospects for positive IP-related legislation in our national competitive interests. I am now mildly optimistic that Congress can pass necessary IP legislation if both parties in Congress and the Administration work together.
Three Countries Seek to Join the EU SEP Case
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). […]
EU Files Request for Consultations on Chinese Judicial SEP Practices
On February 18, 2022, the EU filed a request for consultations at the WTO regarding China’s SEP practices as well as China’s failure to respond to the prior Article 63 transparency request […]
China IPR - Intellectual Property Developments in China 