Anti-suit Injunctions and FRAND: The Law of What Land?

Abstract

A standard is the mechanism through which a recurring problem is abstracted to an easily implemented common solution. Standards encourage innovation by reducing the cost of solving common problems, and benefit consumers by creating safer, more affordable products. To encourage proliferation of standards, private consortiums require patents on standards technology to be licensed on reasonable terms. This requirement, known as the fair, reasonable, and non-discriminatory (FRAND) obligation, is vague and has been the subject of extensive litigation, particularly as standardized technologies enjoy increased adoption and create large profits. To allow society to continue harnessing the benefits of standardization, courts should refrain from using the anti-suit injunction in cases of concurrent jurisdiction over FRAND disputes. The courts' increasing use of the anti-suit injunction encourages litigants to forum shop, harms international relations, and threatens the predictability that businesses need to invest in research and development. These consequences threaten to hamper standards development as well as the benefits to consumers and society. This Note argues against the use of the anti-suit injunction in FRAND suits. Additionally, this Note argues that standard-setting organizations should import choice of law and forum selection clauses into FRAND contracts to facilitate FRAND negotiations. These clauses can remove the incentives for courts to issue anti-suit injunctions, and for litigants to request them.