Jurisdictional Competition in the Market for Technological Standards

Abstract

This article examines jurisdictional competition in disputes over standard essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) licensing. It argues that although FRAND commitments aim to facilitate efficient global licensing, the territorial nature of patent rights enables both patentees and implementers to forum shop for courts likely to favour their respective positions on royalty rates, injunctions, and willingness to license. The analysis revisits the Huawei v ZTE framework, showing that strategic hold-up and hold-out practices often complicate its application in practice. The article then traces the growing use of anti-suit, anti-anti-suit, and anti-interim-licence injunctions across the United States, China, the United Kingdom, the European Union, and the Unified Patent Court, highlighting tensions between contractual approaches to FRAND, competition law, and judicial comity. It further discusses the WTO dispute China – Enforcement of Intellectual Property Rights (EU), emphasizing the renewed importance of territoriality and the independence of national patent rights under TRIPS. The article concludes that greater transparency, judicial restraint, and respect for comity are essential to reduce procedural conflict and improve legitimacy in global FRAND dispute resolution.