[WTO and International Trade Case Review Series No. 45] China – Measures Concerning Intellectual Property Rights (WT/DS611/11,WT/DS611/ARB25): “Anti-suit injunctions” in standard-essential patent disputes and the reach of the TRIPS Agreement —

This paper examines WTO dispute DS611, focusing on the consistency of China’s anti-suit injunctions (ASIs) policy in disputes over standard-essential patents (SEPs) with the TRIPS Agreement. The EU argued that China’s ASI policy constrained the exercise of patent rights and related rights in other Members. The Panel read the first sentence of Article 1.1 of the TRIPS Agreement as requiring Members to put in place domestic legal frameworks and held that no violation occur so long as domestic law ensures the relevant IP rights. By contrast, the MPIA found China’s ASI policy to be inconsistent with the TRIPS agreement, notably Articles 1.1, 28.1 and 28.2. This article compares these approaches, focusing on the MPIA’s interpretation of the first sentence of Article 1.1 and its limits, and also considers the protection of the FRAND negotiation environment under Article 28.2.