In a communication posted on the WTO's website on July 6, 2021 (IP/C/W/682), the EU requested information from China pursuant to Article 63.3 of the TRIPS Agreement (Article 63 is entitled "Transparency"). Article 63.3 states:
Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.
In particular, the EU asked about "a number of recent judicial decisions and regulations relating to patents," noting that "in four court cases decisions were taken relating to application for and enforcement of injunctions in relation to standard essential patents." These decisions, it said, "appear to give a new interpretation to existing laws and regulations, and also have led to new regulations being proclaimed." The four judicial decisions are as follows:
1. Conversant v Huawei, which the EU said "was reported as China’s first decision putting in place a so called 'anti-suit injunction' and the first for setting daily fines."
2. OPPO v Sharp, which the EU said "is reported as barring the holder of a European patent from enforcing a court decision of a Member State of the European Union relating to that patent, and forcing the patent holder to withdraw the case from before that court." It is also “reported as being the first worldwide ‘anti‑suit injunction’ and dealing with ‘anti-anti-suit injunctions’ in other jurisdictions.”
3. Xiaomi v InterDigital, where a court ruled that InterDigital "should immediately withdraw or suspend the patent license rate ruling and injunction against Xiaomi in India, and could not apply for patent license rate ruling and injunction against Xiaomi in any court in the world."
4. Samsung v Ericsson, where there was evidence that a court "imposed an anti-suit injunction similar to that of InterDigital on Ericsson."
According to the EU, it had only been able to find the first case online, and said it "would like to request China to clarify if and where the decisions in the other three cases can be found and provide these."
In addition to asking about the text of the three court decisions, the EU raised the following issues: the status of "big" and "typical" cases in the Supreme People's Court; the status of the Supreme People's Court IP Tribunal adjudication guidelines; the status and role of "act preservation measures" in intellectual property disputes; the court’s “jurisdiction to set worldwide license rates” in OPPO v Sharp; and the scope of anti-suit injunctions.
The EU said this was a case of "some urgency" and requested that China "provide its answers eight weeks after receipt of this Communication." It also "welcome[d] the opportunity to have a further exchange on this topic in the Council for TRIPS."
For further reading on this issue, see a blog post by law professor Mark Cohen here.
