Judicial Fragmentation: anti-suit injunctions between L&E and geopolitics

Oscar Borgogno (Banca d'Italia)


This piece delves into the global surge of litigation involving "antisuit injunctions" (“ASIs”), a judicial tool aimed at curtailing patent holders from enforcing their standard essential patents (“SEPs”). This phenomenon carries the inherent danger of splintering the judicial landscape across the UK, China, US, and the EU. The implications of these legal conflicts extend significantly, potentially disrupting the world trade in information and communication technology (“ICT”) products like smartphones and Internet of Things devices.
The study explores how a regulatory framework founded on the principles of law and economics, designed to address issues like patent hold-up and moral hazard behaviours by patent holders, is colliding head-on with complex geopolitical dynamics. The work showcases the recent trend in UK and Chinese courts, where setting global licensing terms has sparked a global race to file lawsuits. Litigants are racing to secure their preferred legal venue for establishing worldwide licensing rates, while also attempting to prevent patent holders from initiating patent infringement proceedings elsewhere using ASIs.
In response, the European Union has activated the WTO’s Dispute Settlement Mechanism to address China's deployment of ASIs, which allegedly represents a unilateral measure favouring Chinese manufacturers to the detriment of European companies holding high-tech patents. The paper delves into this and other disputes, with the aim of assessing potential solutions based on a robust incentive framework to prevent ASIs from continuing to erode global trade in industries that heavily depend on Intellectual Property Rights (IPRs).

Download the file

©2023 Italian Society of Law and Economics. All rights reserved.