SEPs, FRAND and Multilateralism under Strain: DS611, the Expiry of the TRIPS NVSC Moratorium, and the International Intellectual Property System

Abstract

This article examines the arbitral award issued under the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) in DS611, concerning anti-suit injunctions in disputes involving standard essential patents (SEPs). It argues that the award should not be understood as an implicit application of non-violation or situation complaints (NVSC), since it rests on the interpretation of specific textual obligations under Articles 1.1, 28.1 and 28.2 of the TRIPS Agreement. The article argues that the category of “frustration” employed by the arbitrators produces functional resonances with the logic of nullification or impairment of expected benefits, requiring even greater institutional caution after the expiry of the TRIPS NVSC moratorium at the conclusion of the 14th WTO Ministerial Conference, held in Yaoundé in 2026. The article also examines the issue of territoriality surrounding the case in light of Article 4bis of the Paris Convention. In this context, DS611 may be read as functionally preserving patent independence by preventing extraterritorial measures from neutralizing the enforcement and validity review of patents granted in other jurisdictions. The article proposes interpretive safeguards and policy recommendations.