Arbitration by SSOs as a Preferred Solution for Solving the FRAND Licensing of SEPs?

摘要

In the last decade, the licensing of standard essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms has been a thorny issue for SEP holders in the US and Europe on the one hand, and major SEP implementers in major Asian economies on the other, such as Japan, Korea, the PRC, Taiwan and even India. With the rise of the Fourth Industrial Revolution, driven by the Internet of Things (IoT), 5G, driverless vehicles, and artificial intelligence (AI), which relies even more on interconnectivity, more and more new standards and SEPs will emerge, and the issue of FRAND licensing of SEPs will be even hotter. The situation is further exacerbated by national courts' issuance of anti-suit/ enforcement injunctions and even anti-anti-suit/enforcement injunctions. Since Microsoft V. Motorola in 2012, US courts have applied anti-suit injunctions broadly to prohibit litigants from initiating or continuing parallel SEP-related litigation in another jurisdiction. For example, in June 2015 the Northern District Court of California granted InterDigital's motion for a preliminary injunction requiring Pegatron (a Taiwanese company) to dismiss its suit in Taiwan, and again in April 2018 it issued an anti-enforcement injunction in the Huawei v. Samsung case to enjoin Huawei from enforcing an injunction on Chinese SEPs entered by the Shenzhen Intermediate People's Court. The England and Wales High Court also held that an anti-suit injunction could be permissible in Conversant (Singaporean company) v. Huawei and ZTE in 2018. Recently, after the Chinese Supreme People's Court issued within two days an anti-enforcement injunction against Conversant in August 2020, prohibiting it from enforcing a decision rendered by the Dusseldorf District Court, the Wuhan Intermediate People's Court has taken the whole world by surprise. It issued in September 2020 a global anti-suit injunction against InterDigital in its suit with Xiaomi (Chinese company) and then issued in March 2021 against Ericson in its suit with Samsung (Korean company) a global anti-suit (excluding even other Chinese courts) and anti-administrative complaint injunction.