Localized Innovations In China's SEP Anti-Suit Injunction System: Comparative Analysis Of ASI/AASI Judicial Practice Within The Act Preservation Framework And Western Models

Abstract: The "ASI-type Act Preservation" and "AASI-type Act Preservation" systems introduced by the SPC of China in international SEP disputes break through the single-function orientation of traditional act preservation. A comparative study reveals the following: 1. The Chinese system establishes a dual review framework centered on substantive review, differing from the procedure-focused adjudication paths prevalent in Europe and the United States. 2. China's innovation lies in integrating parallel litigation coordination mechanisms into the act preservation process, forming a hybrid judicial tool that combines procedural control and substantive relief. This localization represents a flexible application of the principle of international comity and offers a new paradigm for global SEP governance. However, this judicial innovation has shortcomings. For example, when the applicant for act preservation is not the right holder, laws and regulations specific to intellectual property preservation cannot be explicitly cited. Moreover, neither the overarching Civil Procedure Law nor the specialized intellectual property preservation system addresses procedural rights typically considered in international parallel litigation, such as judicial sovereignty and the litigants' right to file lawsuits.

Introduction:

On December 12, 2024, as Huawei's competitor Netgear sought an anti-suit injunction in a U.S. court, before any decision was made by the U.S. court, China's Supreme People's Court (SPC) issued a widely reported ruling. This marked China's first Anti-Anti-Suit Injunction (AASI) related to a standard-essential patent (SEP), sparking widespread interest within the intellectual property community. Scholars and practitioners analyzed its facts and implications in various ways. However, nearly all headlines referred to it as an "anti-anti-suit injunction," when, in fact, it was an act preservation ruling in the second instance of a SEP infringement dispute between Huawei and Netgear.

A similar situation occurred earlier. On August 28, 2020, when Huawei's rival Conversant Technologies won an infringement case in Germany and was about to enforce an injunction from the German court to compel Huawei to accept its licensing terms, China's SPC issued its first SEP-related anti-suit injunction. This decision, like the 2024 case, caused a significant stir in the IP community but was actually an act preservation ruling. At that time, media reports and commentaries similarly referred to it as an anti-suit injunction (ASI) rather than an act preservation ruling.

Over approximately four years, the SPC completed its institutional innovation under the Civil Procedure Law framework—creating the "ASI-type Act Preservation" and "AASI-type Act Preservation" mechanisms. These mechanisms for the first time incorporated the jurisdictional contest over international parallel litigation into China's judicial relief system for intellectual property. By deconstructing the SPC's judicial wisdom, this paper reveals how China has constructed a patent judicial protection paradigm that balances procedural justice and substantive rights while respecting the principle of international comity.

Previous studies have primarily focused on procedural law's shared characteristics in ASI/AASI across China, the U.S., and Europe, neglecting the unique context of China's institutional innovation: traditional act preservation theories center on substantive rights relief, whereas China's ASI/AASI mechanisms creatively integrate litigation procedure control into preservation. In these two cases, the SPC assessed both the impact of foreign litigation on Chinese adjudication and the substantive harm suffered by litigation subjects, forming a hybrid evaluative standard spanning procedural and substantive law.

1. The Legal Origins and Implications of Act Preservation Prior to the Emergence of ASI and AASI
2. Concept of Act Preservation (AP)

In the Chinese civil legal system, Act Preservation is a concept formally introduced in the 2012 revision of the Civil Procedure Law (Article 100). This article added provisions for AP to the existing property preservation system. The 2023 edition of the Civil Procedure Law (Article 103) maintains this provision:

"For cases where actions by one party or other reasons may make judgment enforcement difficult or cause other damages to the involved parties, the People's Court may, upon application from an opposing party, order the preservation of property, the performance of specific acts, or the prohibition of specific acts. The Court may also decide to implement preservation measures when necessary, even without an application from the opposing party."

Act Preservation represents the Court's authority to issue mandatory orders requiring or prohibiting certain actions by a party.

2.Historical Development in Patent Law

However, even before Act Preservation was formally incorporated into the Civil Procedure Law, the concept was already present in China's Patent Law. In the 2000 revision, the Patent Law introduced Act Preservation (Article 44) to enhance the protection of patent holders. This provision was carried over into the 2020 revision (Article 72):

"If a patent holder or an interested party can prove that someone is engaging in or is about to engage in acts infringing their patent rights that could cause irreparable harm to their legitimate rights if not promptly stopped, they may apply to the People's Court for measures to preserve property, mandate certain actions, or prohibit certain actions before filing a lawsuit."

3.Judicial Guidance for IP-Specific Preservation

In light of China's strong emphasis on intellectual property (IP) protection, the SPC has issued supportive judicial interpretations and guidelines.

1）2001 Judicial Interpretation Following the 2000 Patent Law revision, the SPC implemented the Judicial Interpretation on Pre-Litigation Measures for Ceasing Patent Infringement in 2001. Key provisions included:

Article 3: applicants for preservation must demonstrate that without timely prevention, the actions in question will cause irreparable harm to their legitimate rights.

Article 4: applicants are required to submit evidence, including: a) Proof of legitimate patent ownership (e.g., patent certificates). b) Supporting documentation for utilitarian patents, such as reports from administrative patent authorities. c) Evidence of actual or imminent infringement.

2）2019 Expansion to All IP Disputes In 2019, the SPC issued Provisions on Act Preservation for IP Disputes, expanding its application to all areas of intellectual property. This marked the repeal of the 2001 interpretation and extended preservation mechanisms beyond patents to the broader IP landscape.

For easier understanding, the table below summarizes the relevant considerations outlined in Articles 7 and 10 of the 2019 Judicial Interpretation on Act Preservation in IP disputes:

The Judicial Interpretation is clearly designed to protect the substantive rights of the intellectual property holder, such as market share. The target of Act Preservation is suspected infringing business activities, which are considered acts of infringement.

The September 2019 Guiding Opinion on Strengthening IP Infringement Punishment Measures further specifies scenarios for enhancing the application of Act Preservation measures. These scenarios also clarify that the preservation measures target suspected infringing activities, with the objective of preventing the loss of substantive rights like market share and brand reputation. Article 1 reads:

"For acts involving core technologies, well-known brands, popular programs, or IP rights infringements at exhibitions that could cause irreparable harm, the People's Court must promptly review and decide on Act Preservation applications."

4.Scope of Judicial Measures of AP

From statutes, special laws, judicial interpretations, and guiding opinions, it is evident that in the IP domain, China's Act Preservation primarily aims to prevent damage to substantive rights of the right holder, requiring the suspected infringer to stop infringing activities. This can be observed in cases like:

1）The copyright dispute over The Voice of China ruled by the Beijing Intellectual Property Court.

2）The copyright dispute between Legend of Blue Moon and Flaming Meteor ruled by the Hangzhou Intermediate Court.

3）The patent-related case between Qualcomm and Apple handled by the Fuzhou Intermediate Court, where Apple was required to cease sales.

Although the Civil Procedure Law has broad horizontal coverage of Act Preservation, its vertical application in IP, especially patents, is narrower. It is limited to domestic litigation, protecting patent holders and targeting market-related infringing activities like manufacturing or sales. The essence of Act Preservation is to provide interim judicial relief before a verdict is made to prevent continued possible infringement.

However, the SPC's recent two rulings involved a different scenario. The targets were not domestic litigation, the beneficiaries were not limited to patent holders, and the preserved objects were not market activities. These measures aimed to address jurisdictional disputes between domestic and foreign litigation, focusing on litigation behavior (e.g., filing lawsuits, enforcing rulings). Thus, these innovative measures—ASI-type Act Preservation and AASI-type Act Preservation—were created to fill a legislative void.

1. The SPC's Introduction of Two New "Flowers" of Act Preservation: ASI and AASI

Against the backdrop of the increasing international parallel litigation arising from Standard-Essential Patent (SEP) licensing disputes, the SPC has innovatively transplanted certain aspects of anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI) from Western judicial systems into the Chinese legal framework. This adaptation, based on existing Civil Procedure Law and judicial interpretations on act preservation, merges elements of substantive rights in Chinese legislation with procedural elements from the West, resulting in the creation of ASI-type Act Preservation and AASI-type Act Preservation.

1. The "First Flower"—The Birth of ASI-type Act Preservation

China's ASI-type Act Preservation borrows from the American tradition of issuing ASIs. The United States has long granted ASIs to resolve issues arising from interstate and international parallel litigation. Historically, ASIs in the U.S. were primarily applied outside of the patent domain, due to the territoriality of patents and considerations of international comity. Moreover, the combination of patents with standards occurred relatively late, and SEP licensing disputes emerged only in recent years. Thus, American courts lack early precedents in this area.

While European courts also issue ASIs, they do so infrequently due to international comity concerns. In 2012, the U.S. court in the Microsoft v. Motorola case became the first to issue a globally influential ASI in the SEP domain. Subsequently, nearly half of ASI applicants in SEP cases in the U.S. were granted ASIs.

1) Factors Considered by U.S. Courts When Issuing ASIs

The considerations of U.S. courts are complex and vary depending on judicial perspectives (liberal, conservative, moderate). A commonly adopted framework is based on the Ninth Circuit Court's 2006 precedent, the Gallo framework, which involves a three-step analysis:

(a) Whether it facilitates resolution of parallel litigation:

• Are the parties to the domestic and foreign litigation identical?
• Are the subject matters of the domestic and foreign litigation functionally equivalent?
• Does resolution of the domestic litigation eliminate the need for duplicative foreign litigation?

(b) Whether the foreign litigation poses undue harm: Following the Fifth Circuit Court's 1972 precedent, the Unterweser factors are applied to determine whether foreign litigation should proceed. These factors include whether the foreign litigation:

• Contravenes domestic policy,
• Is vexatious or oppressive,
• Interferes with domestic jurisdiction, or
• Harms other equally important interests.

(c) Whether the ASI would significantly undermine international comity.

2) Factors Considered by Chinese Courts When Issuing ASIs

In the 2020 Huawei v. Conversant case, the SPC considered factors partially similar to those of U.S. courts when deciding whether to issue an ASI. The Court's considerations included:

(a) The impact of the foreign court's judgment enforcement on Chinese litigation, including:

• Whether the parties in the domestic and foreign lawsuits are the same.
• Whether the subject matters of the domestic and foreign lawsuits overlap.
• The impact of the foreign litigation on domestic litigation.

(b) Whether Act Preservation measures are indeed necessary.

(c) Whether the harm to the applicant from not taking Act Preservation measures outweighs the harm to the respondent from implementing such measures.

(d) Whether Act Preservation measures harm public interest.

(e) Whether Act Preservation measures comply with the principle of international comity.

Chinese ASI Considerations and Their Sources

Note:

The ASI issued by the SPC, like the first ASI in the U.S., is an injunction against enforcement rather than restricting parties from exercising rights to file lawsuits abroad. Thus, it represents a less aggressive ASI, emphasizing international comity.

3) Comparison Between Chinese ASI Considerations and U.S. ASIs

The considerations for China's first ASI-type Act Preservation—"(1) litigation parties and subject matter," "(4) public interest," and "(5) international comity"—essentially correspond to the U.S. Gallo Framework's (1), (2), and (3). However, the Chinese ASI focuses on fewer specific points than its American counterpart. A notable difference is that China emphasizes comparing the substantive harm to litigants. This may be due to the broad scope of the Civil Procedure Law, which does not provide specific factors to consider, requiring reliance on the detailed factors outlined in Article 7 of the Judicial Interpretation on Act Preservation. Nonetheless, in this case, Conversant is the patent holder and Huawei is the implementer. The Judicial Interpretation, designed to protect patent holders, cannot be directly cited here.

4) Comparison Between Chinese ASI Considerations and the Judicial Interpretation on Act Preservation

Although the SPC did not explicitly cite the Judicial Interpretation, the factors it considered align with those outlined in Article 7, namely: "(2) irreparable harm to the applicant," "(3) comparison of harm between litigants," "(4) weighing public interest," and "(5) other relevant considerations." Thus, the factors for China's ASI-type Act Preservation draw from both the procedural elements and international comity considerations of U.S. ASIs, as well as the substantive rights and public interest factors from the Judicial Interpretation.

2. The "Second Flower"—The Birth of AASI-type Act Preservation

Compared to the birth of ASI-type Act Preservation, the SPC took a clearer stance in adapting Western concepts for AASI-type Act Preservation. While the Court's first ruling for ASI-type Act Preservation made no mention of the term "anti-suit injunction," its first AASI-type Act Preservation ruling explicitly identified it as an Anti-Anti-Suit Injunction (AASI) or an Anti-Enforcement Injunction (AEI).

As mentioned earlier, ASIs are rarely issued in civil law systems. This is partly due to the lack of equity law traditions and the principles of international judicial comity. Article 27 of the Brussels Convention codifies the comity principle for the court of first filing across EU, stipulating that if litigation is initiated in a court of an EU member state, other courts must refuse jurisdiction over parallel litigation involving the same parties and facts. Consequently, civil law courts rarely issue anti-suit injunctions.

1) Factors Considered by German and French Courts When Issuing AASIs

AASIs originated in civil law countries to counter ASIs issued by common law courts, aiming to preserve national jurisdiction or public policy. For instance, the Düsseldorf Court of Appeals in Germany stated that any British ASI prohibiting German parties from continuing litigation in German courts infringes on German sovereignty, allowing German parties to refuse such injunctions.

France was the first country to issue an AASI in the SEP domain. The Paris Court concluded that Lenovo's request for an ASI in the U.S. would infringe IPCom's fundamental right to file lawsuits under French law.

2) Factors Considered by Chinese Courts When Issuing AASIs

In the 2024 Huawei v. Netgear case, the SPC explicitly cited the Judicial Interpretation on Act Preservation when issuing the AASI. This citation was apt because the applicant seeking Act Preservation in this case was the rights holder, perfectly matching the Judicial Interpretation's scenarios for protecting patent owners. However, the SPC extended its analysis beyond the original scope of the Judicial Interpretation for certain considerations.

Key Considerations in the SPC's AASI-type Act Preservation and Their Sources

By comparing the SPC's AASI considerations with those of German and French courts, it is clear that factors (B) and (C) reflect the influence of AASI factors by civil law courts. Both emphasize ensuring that the procedural rights of litigants, particularly patent holders, are not obstructed domestically. Specifically, the SPC highlights the harm caused by interference with Huawei's right to pursue litigation and enforce judgments under Chinese law.

Other considerations for this AASI remain rooted in the substantive rights focus typical of Act Preservation. Unlike ASIs, which are offensive in nature, AASIs serve as defensive injunctions. Thus, the SPC did not include international comity as one of the "other factors to consider" under Article 7(5) of the Judicial Interpretation.

III. Limitations and Directions for Improvement in the Legal Application of Chinese ASI and AASI in the SEP Domain

1. Limitations in the Legal Application of Chinese ASI and AASI in the SEP Domain

This paper has analyzed the similarities and differences between the SPC's first ASI-type and AASI-type Act Preservation and their Western counterparts. The former combines substantive rights with Western procedural litigation rights, while the latter focuses on procedural litigation rights. It was also noted that the first ASI and AASI decisions differed in their application of the Judicial Interpretation on Act Preservation—implicitly for the former and explicitly for the latter.

However, these approaches reveal certain shortcomings in legal application:

• The first ASI-type Act Preservation protects the implementer and thus cannot explicitly cite the Judicial Interpretation on Act Preservation. Meanwhile, the higher-level Civil Procedure Law is too vague, lacking operational specificity.
• The first AASI-type Act Preservation safeguards the patent holder and can therefore apply the Judicial Interpretation. However, this interpretation does not cover situations where the applicant is the implementer. Consider, for example, a hypothetical reversal of roles between Huawei and Netgear in a Chinese royalty rate dispute. Specifically, if Huawei were the implementer and Netgear the patent owner seeking an anti-suit injunction in U.S. litigation, how would the existing Judicial Interpretation be applied to Huawei's request for an AASI within the Chinese litigation context?
• SEP litigants may choose various claims (infringement, royalty rate, antitrust, contractual disputes) based on the characteristics of different jurisdictions. Relying on an interpretation designed to protect patent holders would struggle to address cases where the applicant is an implementer. This creates a scenario where the "tool" feels inadequate, requiring case-by-case reasoning, which undermines legal predictability.
• The rulings involve procedural litigation factors in international parallel disputes, judicial comity, and sovereignty issues. Is it appropriate to use a Judicial Interpretation primarily designed to balance the interests of parties in a single domestic litigation?

Thus, there is an urgent need for specific laws on Act Preservation to address parallel litigation involving patent holders and implementers in the SEP domain. These laws would provide courts and litigants with more precise and relevant legal bases, enhancing predictability.

2. Application of ASI and AASI in Other Domains

China has enacted similar measures to Western ASIs and AASIs in other fields, such as maritime disputes. Article 51 of the Special Maritime Procedure Law explicitly provides for maritime injunctions, which are designed to achieve these functions and have been successfully invoked by maritime courts to resolve international parallel litigation.

For example, in 2017, a Chinese insurance company and a Greek chartering company disputed over transportation bills of lading. The Greek company applied for and was granted an anti-suit injunction by the Hong Kong High Court. Subsequently, the Chinese company sought a maritime injunction from the Wuhan Maritime Court, which ordered the Greek company to withdraw the anti-suit injunction in Hong Kong. This maritime injunction functioned as a Anti-anti-suit injunction, reflecting China's tailored approach to resolving parallel litigation in the maritime domain.

Conclusion

The SEP domain is highly prone to international parallel litigation with significant impacts on technology and industry. Addressing gaps in the legislative framework for ASIs and AASIs is crucial. The SPC's judicial practices in issuing ASIs and AASIs in SEP cases provide valuable material for developing legislation in this domain. Future legislative improvements would further enhance judicial practices.

The views expressed in this article represent the author's personal opinions and do not reflect those of their employer or platform.

References:

1. Civil Ruling on the Second-Instance Patent Infringement Dispute between Huawei Technologies Co., Ltd. and Netgear (Beijing) Network Technology Co., Ltd. (2024) SPC IP Civil Final No. 914 and 915.
2. Civil Ruling on the Confirmation of Non-Infringement and SEP Licensing Dispute between Conversant Wireless Licensing Co., Ltd. and Huawei Technologies Co., Ltd., Huawei Terminal Co., Ltd., Huawei Software Technologies Co., Ltd. (2019) SPC IP Civil Final No. 732, 733, and 734.
3. Peter K. Yu, Jorge L. Contreras, and Yu Yang, Transplanting Anti-Suit Injunctions, p. 1568 – First globally influential ASI in FRAND case (Microsoft v. Motorola).
4. Ibid, p. 1569.
5. Ibid, p. 1567 – &J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 991 (9th Cir. 2006).
6. Ibid – In re Unterweser Reederei GMBH, 428 F.2d 888 (5th Cir. 1970), aff'd per curiam, 446 F.2d 907 (5th Cir. 1971) (en banc, vacated, 407 U.S. 1 (1972)).
7. Study on Legal Issues of SEP in Communication Field, Guangdong High People's Court IP Division, 2021, p. 244.
8. Ibid, p. 247.
9. Peter K. Yu, Jorge L. Contreras, and Yu Yang, Transplanting Anti-Suit Injunctions, pp. 1569–1570 – First globally influential AASI in FRAND case (Lenovo v. IPCom).
10. Study on Legal Issues of SEP in Communication Field, Guangdong High People's Court IP Division, 2021, pp. 252–253.

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