Standards are technical requirements or specifications that seek to provide a common design for a product or process. Patents which are essential to a standard and have been adopted by a Standard Setting Organization (SSO) are known as SEPs. However, the exclusive rights conferred by patents on inventors may defeat the object of making standards available to all for public use. In order to address this problem, most SSO’s have defined IPR policies where SSO members must commit to licensing their SEPs on terms and conditions that are “Fair, Reasonable and Non-Discriminatory” (FRAND). These commitments are meant to protect technology implementers while ensuring that Patent holders receive an appropriate reward for their investment in research and development. SSOs can be governmental, quasigovernmental or private. These are responsible for setting, developing, coordinating, interpreting and maintaining standards. The Bureau of Indian Standards is India's national SSO. In the Information and Communications Technologies sector the Telecom Engineering Centre is the only formally recognized telecom standards/ specification/type approval body in India. Global ICT Standardization Forum for India, Telecommunications Standards Development Society, India (TSDSI), and Development Organization of Standards for Telecommunications in India are private SSOs in the Indian ICT sector.The Institute of Electrical and Electronic Engineers and International Telecommunication Union are prominent SSOs in the cellular and Wi-Fi space. Licensing SEP on FRAND terms is a voluntary contract between the SSO and the SEP holder. However, the meaning of FRAND has not been defined by SSOs; it depends upon the nature of the transactions between the SEP holder ("licensor") and the SEP implementer ("licensee"). The first SEP dispute in India was Telefonaktiebolaget Lm Ericsson (Publ) v Mercury Electronics, in which Ericsson filed an infringement suit against Mercury Electronics and Micromax Informatics Ltd, claiming infringement of its eight SEPs used in 2G, 3G and 4G devices. Read here.
Anti-Suit injunctions or ASIs have extended judiciary decisions beyond country borders. courts in the U.S. and UK adjudicating cases involving standards-essential patents and FRAND licensing commitments have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction. After all, the notion that ASIs sought by SEP implementers can be acceptable and compliant with patent law has been confirmed by a US court in Microsoft v. Motorola (see the first instance ruling (W.D. Wash. 2012), affirmed on appeal (9th Cir. 2012)).The UK suit was recently decided by the UK Supreme Court, [2020] UKSC 37, which held that a UK court has the authority to set a global FRAND royalty rate between the parties, notwithstanding its lack of jurisdiction over patents outside the UK. Supreme People’s Court (SPC) of China followed with ASIs. Conversant sued Huawei in the District Court in Düsseldorf, Germany, alleging infringement of several European patents. On August 27, 2020, the Düsseldorf court granted Conversant an injunction against Huawei’s sale, use or importation in Germany of devices infringing patent EP1797659 (the German Patent). On the same day, Huawei applied to the SPC seeking an “act preservation” ruling (a judicial action roughly equivalent to an ASI) to prevent Conversant from enforcing the Düsseldorf injunction until the conclusion of the Chinese proceedings. The SPC granted the ASI after an ex parte hearing in which Conversant did not participate.
Anti-Anti-Suit Injunction (AASI) followed ASIs, initially in Germany and France, landed now in India. The dispute between InterDigital, a U.S.-based patent assertion entity, and Xiaomi, a Beijing-based electronics firm, relates to five InterDigital patents covering the 3G and 4G standards. When negotiations for a license failed, on June 9, 2020 Xiaomi sought a declaration by the Wuhan Intermediate People’s Court of the appropriate FRAND royalty rate for the patents. On July 29, InterDigital sued Xiaomi for infringement in the Delhi High Court in India, seeking monetary damages and an injunction. In response, on August 4, Xiaomi asked the Wuhan court for an “act preservation” ruling (ASI) preventing InterDigital from enforcing the injunction while the Wuhan proceeding was in progress.Accordingly, on September 23, the Wuhan court (a) ordered InterDigital to withdraw its requests for injunctive relief in India, (b) prohibited InterDigital from seeking injunctive relief in China or any other country with respect to the 3G/4G patents currently at issue in the Wuhan case, and (c) prohibited InterDigital from asking another court in China or any other country to determine a FRAND royalty rate or resolve a FRAND dispute relating to the 3G/4G patents at issue.In response to the entry of the ASI by the Wuhan court, InterDigital disclosed to the U.S. Securities and Exchange Commission (first reported by IAM) that on September 29, it filed for an anti-anti-suit injunction (AASI) in the Delhi High Court to prevent Xiaomi from enforcing its Chinese ASI.
SEP owners are in USA and Europe ,China has large licensees. Position may change with Chinese firm owning SEPs in future. India has neither SEP owners nor manufacturers needing SEP.
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