Patents are property rights that drive innovation, investment, and economic growth, which are especially critical in technology sectors that rely on global standards. Robust, enforceable patent protections have underpinned America’s technological leadership and economic prosperity by ensuring innovators are rewarded for their investments. These property rights are, however, increasingly threatened by strategic judicial actions from abroad—in particular, the issuance of anti-suit injunctions (ASIs). ASIs are judicial orders that prohibit litigants from initiating or continuing patent-enforcement proceedings in another jurisdiction. They serve as a powerful procedural tool that can prevent parallel litigation in multiple forums simultaneously. While ASIs traditionally help maintain judicial efficiency and avoid conflicting decisions, their recent application—especially in disputes over standard-essential patents (SEPs)—has evolved into a strategic battle to secure jurisdictional advantage. An emerging central issue concerns national courts that assert their authority to set FRAND (“fair, reasonable, and nondiscriminatory”) licensing rates globally, leading to heightened jurisdictional conflicts and creating a potential “race to the bottom” scenario in global patent enforcement. This strategic use of ASIs (notably, in jurisdictions like China) is often linked to broader industrial-policy objectives—i.e., controlling international licensing terms by effectively devaluing foreign-held patents. Such judicial tactics undermine the foundational principle of territoriality in patent law. They also threaten the stability of global intellectual-property regimes by compelling patent holders into accepting licensing terms dictated by the most assertive jurisdiction, which can result in artificially low royalty rates. Anti-Suit Injunctions in Global Patent Disputes An anti-suit injunction (ASI) is a court order (typically, an interlocutory one) that restrains a party from initiating or continuing legal proceedings in other jurisdictions. This powerful judicial tool targets a specific litigant, rather than the foreign court itself, with the goal of avoiding conflicting judgments or parallel proceedings that could undermine the domestic court’s authority. For example, in a notable case between Samsung and Ericsson involving patents essential to 4G and 5G wireless standards, Samsung sought and obtained an ASI from a court in Wuhan, China, prohibiting Ericsson from pursuing patent-enforcement actions in the United States and other jurisdictions. In response, a U.S. court issued an anti-anti-suit injunction (AASI) that blocked Samsung’s Chinese order and allowed Ericsson’s U.S. litigation to continue. ASIs are commonly employed to protect a court’s jurisdiction, prevent redundant litigation, and enforce contractual agreements—such as exclusive jurisdiction or arbitration agreements. In that context, they seek to promote judicial efficiency and uphold the principle of contractual freedom. But the ASI landscape has shifted dramatically, as they are increasingly invoked in complex, multi-jurisdictional disputes over SEPs subject to FRAND licensing terms. This surge has seen courts in various countries (most notably China) actively use ASIs as strategic weapons in high-stakes battles involving major technology companies. This aggressive use of ASIs has triggered a jurisdictional “ping-pong game,” with courts in targeted nations responding with their own AASIs to neutralize the initial ASI and to protect their own jurisdiction. For instance, in a dispute between InterDigital and Xiaomi, after Xiaomi obtained an ASI from a Wuhan court preventing InterDigital from pursuing patent enforcement in India, the Delhi High Court issued an AASI that allowed InterDigital to proceed with its infringement actions in India—thus directly countering the Chinese court’s ASI and reinforcing India’s jurisdiction over the case. We’ve seen such AASIs emerge from courts in the United States, India, and Europe—including the Unified Patent Court (UPC), which has shown a willingness to issue AASIs to defend its nascent jurisdiction. This escalation, which has sometimes even led to “anti-anti-anti-suit injunctions” (AAASIs), signals intensifying conflicts and a potential breakdown of international comity. Recent developments continue to shape this evolving field. The U.S. Court of Appeals for the Federal Circuit’s October 2024 decision in Ericsson v. Lenovo clarified the “dispositive” requirement for an ASI, potentially making them somewhat easier to obtain in U.S. SEP cases by holding that an ASI can be justified even if it only resolves a foreign injunction, rather than the entire foreign proceeding. Meanwhile, the EU’s World Trade Organization (WTO) dispute against China’s ASI practices saw a panel rule in early 2025 that, while China failed on certain transparency obligations, its ASI policies were not inconsistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”). This decision has been appealed by both the EU and China, with an outcome expected in the latter half of 2025. ASIs as Industrial Policy The strategic deployment of ASIs by foreign courts—particularly those in managed economies like China—can function to effectively expropriate the value of patent rights from their U.S. owners. This aggressive use is not merely procedural; it aligns with broader industrial-policy objectives aimed at shifting the global technological balance, often by transitioning a nation from a net licensee to a net licensor of technology. Chinese courts have notably used ASIs in cases involving domestic technology leaders like Huawei and Xiaomi, shielding these companies from litigation abroad, while consolidating global disputes in China. These actions can be seen as strategic steps to assert China’s growing role as a global technology licensor. Indeed, the significant economic and national interests intertwined with FRAND disputes often lead courts to adopt stances that favor domestic companies or strategic national goals. This calculated approach, where ASIs become instruments of economic statecraft, harms U.S. innovators. ASIs directly obstruct U.S. patent holders from enforcing their legitimate property rights in their chosen forums, which might include U.S. courts or other jurisdictions perceived as more favorable for upholding patent validity and ensuring fair compensation. In the Ericsson v. Samsung dispute, Samsung’s ASI from a Wuhan court was specifically designed to consolidate the global licensing dispute in China, ensuring exclusive authority over the terms. The European Union has voiced similar concerns, noting that Chinese ASIs can compel patent holders to accept lower-than-market royalty rates under duress. This artificially diminishes the patent holder’s leverage in negotiations, effectively devaluing their patent portfolio and coercing them into unfavorable licensing terms globally. When foreign courts combine issuing ASIs with assertions that they have jurisdiction to set FRAND royalty rates global, it can instigate a “race to the bottom” in which litigants shop for jurisdictions most likely to impose the lowest rates. This threatens to distort global licensing markets and undermine efficient, market-based outcomes. The proliferation of conflicting injunctions also generates enormous transaction costs (ultimately passed on to consumers), as resources are diverted from innovation to “meta-litigation” over jurisdictional supremacy. This environment of heightened legal uncertainty and escalating litigation expenses discourages R&D investment in the United States, as the ability to reliably enforce IP rights globally is compromised. Moreover, the strategic use of ASIs to frustrate U.S. patent rights represents a profound disrespect for the sovereignty of U.S. courts and the territorial nature of patents. It generates international friction and disrupts the comity that should govern international legal relations. Arguments justifying ASIs often cite their utility in promoting judicial efficiency, preventing duplicative or vexatious parallel litigation, and upholding the authority of domestic courts, particularly in enforcing arbitration agreements or countering forum shopping. Some scholars suggest the current “ping-pong game” of global ASIs stems not just from procedural tactics, but from such deeper issues as significant national economic interests in SEPs, a regulatory void in FRAND dispute resolution, and divergent national choice-of-law rules. It’s also posited that China’s assertive use of ASIs and its global rate-setting ambitions could be a defensive reaction to similar extraterritorial reach by Western courts (notably in the UK) or a legitimate move to protect its own judicial sovereignty and reflect its growing stature as a technology licensor, rather than just a licensee. But while ASIs are not unique to China, and systemic issues do contribute to jurisdictional friction, Chinese ASIs are distinguished by their sweeping global scope, frequent ex-parte issuance, opaque judicial processes, and clear alignment with a national industrial policy that seeks to suppress global royalty rates. Such strategically deployed ASIs appear designed to devalue foreign-held patents and dictate global terms under a preferred national framework. This suggests that, to at least some degree, the use of ASIs can constitute protectionist behavior that distorts efficient market outcomes and fundamentally undermines property rights, rather than fostering genuine comity or legitimate judicial management. A Trade-Policy Toolkit to Protect US Innovation While recent attention has understandably focused on China’s rapid and expansive deployment of ASIs, it is important to recognize that the strategic use of such injunctions did not originate there. Courts in the United States and the United Kingdom, among others, have also issued ASIs in significant SEP cases, sometimes setting precedents that other jurisdictions (including China) have subsequently adopted and expanded. There are also legitimate procedural reasons to employ ASIs, such as preventing duplicative litigation, enforcing arbitration agreements, or protecting jurisdictional integrity. The key concern arises when their deployment evolves beyond these legitimate purposes and becomes a strategic tool closely aligned with national industrial-policy objectives. Thus, addressing these jurisdictional tensions effectively will require nuanced international cooperation and reforms that extend beyond any single nation’s practices. Addressing the strategic misuse of ASIs and the consequent devaluation of U.S. intellectual property requires a comprehensive strategy that extends beyond reactive, case-by-case litigation. The most effective path forward for the United States would be to leverage existing trade-policy tools to address the issue. For example, the Office of the U.S. Trade Representative (USTR) could continue to prominently feature concerns about the misuse of ASIs (especially those emanating from China) in its annual Special 301 Report, potentially elevating countries that engage in such practices to the “Priority Watch List” to maintain pressure on them and underscore the seriousness of the issue. It could also seek to include provisions in new and existing bilateral and multilateral trade agreements that explicitly discourage or prohibit the use of ASIs that unduly interfere with the legitimate enforcement of patent rights in other jurisdictions. In the multilateral arena, the United States might more vigorously support efforts at the WTO to challenge practices that undermine TRIPS obligations. This includes continuing to highlight the economic harm and trade distortions caused by strategically deployed ASIs, even if initial panel rulings, like those in the EU-China dispute (DS611), are unfavorable on certain interpretations of TRIPS. Furthermore, domestic legislative solutions warrant serious consideration. Congress should re-evaluate and consider enacting measures similar to the Defending American Courts Act (DACA). Such legislation could create significant disincentives for parties attempting to enforce foreign ASIs that undermine U.S. court proceedings or International Trade Commission investigations—e.g., by imposing presumptions of willful infringement or by limiting their ability to challenge patents at the U.S. Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board. The overarching goal of these concerted actions should be to ensure a global playing field in which innovation is rewarded through strong and enforceable intellectual-property rights. The strategic international deployment of ASIs, particularly when used to diminish the value of American intellectual property by dictating global licensing terms, poses a direct threat to the property rights that underpin much U.S. innovation and economic competitiveness. To safeguard the interests of American innovators and maintain technological leadership, the United States should employ a robust and assertive trade policy, coupled with domestic reforms, that can counter these jurisdictional challenges and ensure that patent rights are upheld worldwide. The post Using Trade Policy to Counter Anti-Suit Injunctions and Strengthen Global Patent Enforcement appeared first on Truth on the Market.
