WT/DS611/1  
IP/D/43  
G/L/1427  
 
22 February 2022  
(22-1712) Page: 1/8 
  Original: English  
 
 
CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS  
REQUEST FOR CONSULTATIONS BY THE EUROPEAN UNION  
The following communication, dated 18 February 2022, from the delegation of the European Union  
to the delegation of China , is circulated to the Dispute Settlement Body in accordance with Article  4.4 
of the DSU.  
 
_______________  
 
 
My authorities have instru cted me to request consultations with the Government of the People's 
Republic of China ("China") pursuant to Article 1 and 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU), Article 64.1 of the Agreement on Trade -Related 
Aspects of Intellectual Property Rights ("TRIPS Agreement"), and Article XXII:1 of the General 
Agreement on Tariffs and Trade 1994 ("GATT") with regard to certain measures adversely affect ing 
the protection and enforcement of intellectual property rig hts and with regard to China 's failure to 
carry out its obligations under Articles 63.1 and 63.3 of the TRIPS Agreement .  
1. THE  MEASURES  AT ISSUE  ADVERSELY  AFFECTING  THE  PROTECTION  AND  
ENFORCEMENT  OF INTELLECTUAL  PROPERTY  RIGHTS  
 
1.1. Description of the measures  
 
China has introduced and maintains a policy which in the context of judicial procedures concerning 
the enforcement of intellectual property rights in China prohibits patent holders from asserting their 
rights in other jurisdic tions by commencing, continuing or enforcing the results of legal proceedings 
before  a non -Chinese court. This prohibition materialises through Chinese courts issuing so called 
"anti-suit injunctions" enforced through daily penalties in case of infringemen t, which are typically 
set at the maximum level allowed for under Chinese Civil Procedure Law, and accumulate daily . This 
policy has been introduced by means of a decision by China's Supreme People's Court ("SPC"), which 
has been further elaborated and pro moted by the SPC in a number of official and public documents. 
This policy has been endorsed by the National People's Congress Standing Committee, and  applied 
by Chinese courts in at least four cases.  
The policy has been applied by Chinese courts since the  date of that first SPC decision and, according 
to official statements, it will be applied in the future.  
In its decision of 28 August 2020 in the case of Huawei v Conversant1 the SPC decided ( "SPC decision 
of 28 August 2020 ") that Article 1002 of the Civil Procedure Law of the People 's Republic of China  
("Civil Procedure Law ") allows a Chinese court to put in place a provisional measure3 prohibiting a 
party from applying for enforcement of judgments of a non -Chinese court or from seeking judicial 
relief outwith the jurisdiction of China. Furthermore, it decided that in case of violation of that "anti-
suit injunction ", a Chinese court can impose the maximum fine provided for under Article 115 (1)4 
of the Civil Procedure Law  of 1 million RMB (138,983 EU R / 156,845 USD per day and order that it 
accumulate on a daily basis. The SPC decision of 28 August 2020 gave a further interpretation of 
 
1 The Supreme People 's Court of the People 's Republic of China, Civil Ruling, of 28 August 2020 in Cases 
No. 732, No. 733 and No. 734, between Huawei Technology Co. LTD and Conversant Wireless Licensing S. à r. 
1. 
2 http://www.npc.gov.cn/zgrdw/npc/xinwen/2017 -06/29/content_2024892.htm  
3 China's Civil Procedure Law calls the p rovisional measure an "act preservation measure. " 
4 http:// www.npc.gov.cn/zgrdw/npc/xinwen/2017 -06/29/content_2024892.htm  WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  the relevant provisions of the Civil Procedure Law, building on  a previous judicial interpretation 
provided in " Supre me People's Court's Provisions on Several Issues Concerning the Application of 
Law in Examining Act Preservation Cases in Intellectual Property Disputes ".5 
The SPC decision of 28 August 2020 was taken in the context of an appeal by Conversant against 
a decision of 16 September 2019 by the Nanjing Intermediate People 's Court of Jiangsu Province, 
which had determined the license rate for a 4G standard essential patent owned by Conversant 
and implemented by Huawei in 4G mobile terminal products.6 On 27 August 2020, Huawei applied 
for act preservation ordering Conversant not to apply for enforcement of an injunction granted by 
the District Court of Düsseldorf, Germany on 27 August 2020. On 28 August 2020, the SPC issued 
the anti -suit injunction ord er, prohibiting Conversant , under the sanction of daily penalties,  from 
applying for the enforcement of the first -instance injunction judgment issued by the District Court 
of Düsseldorf before the SPC final judgment becomes effective.  
The European Union un derstands that anti-suit injunctions  generally remain valid until the final 
judgment in the case before the Chinese judgement becomes effective. In reply to the European 
Union  question during China 's Trade Policy Review on the duration of anti-suit injunct ions, China 
referred to Article 13 of the Provisions of the Supreme People's Court on Issues Regarding the 
Application of Law in Examining Cases of Act Preservation in Intellectual Property Disputes, which 
notes that these types of rulings shall generally be valid until the judgment in the case becomes 
effective.7  
1.1.1 Four anti -suit injunctions issued by Intermediate People's Courts  
 
After the SPC decision of 28 August 2020, two lower Chinese courts (Intermediate People's Courts), 
issued anti -suit injunctions in four cases.  
 
1. Xiaomi v InterDigital  - Wuhan Intermediate People's Court    
 
On 9 June 2020, Wuhan Intermediate People 's Court accepted a case filed by a number of companies 
of the Xiaomi group against Inter Digital, Inc. in relation to a licence fee rate for standard essential 
patents.8 On 4 August 2020, Xiaomi filed an application for act preservation in the form of an anti -
suit injunction. On 23 September 2020, the Wuhan Intermediate People's Court issued an anti -suit 
injunction in the abovementioned case. That injunction required InterDigital and its affiliates, under 
the sanction of daily penalties, to withdraw or suspend  an injunction it had requested against Xiaomi 
and its affiliates before the Indian Courts, and prohibited requesting any other court in the world for 
an injunction or a determination of a royalty fee for the 3G and 4G mobile standard essential patents 
("SEPs") involved in the case. The Wuhan Intermediate People's Court granted the injunction relying 
upon the provisions of the Civil Procedure Law, and the Supreme People's Court's Provisions on 
Several Issues Concerning the Application of Law in Examining Ac t Preservation Cases in Intellectual 
Property Disputes as interpreted in the SPC decision of 28 August 2020 . 
 
2. ZTE v Conversant  - Shenzhen Intermediate People's Court  
 
On 17 January 2018, the Shenzhen Intermediate People's court accepted a case ZTE filed against 
Conversant Wireless Licensing Co., Ltd. ("Conversant") requesting the Court to decide the licensing 
conditions for the patents Conversant claimed to be essential for Chinese standards.9 The day of the 
SPC Decision of 28 August 2020, ZTE appl ied to the court for act preservation prohibiting 
enforcement of an injunction by a foreign court.  
On 28 September 2020, the Shenzhen Intermediate People's Court issued an anti -suit injunction.10 
The injunction prohibited Conversant, under the sanction o f daily penalties, from enforcing an 
 
5 Approved by the 1755th conference of the judicial committee of the Supreme People's Court on 26 
November 2018, to be enacted from January 1, 2019) Fa Shi [2018] No. 21. http://www.court.gov.c n/zixun -
xiangqing -135341.html  
6 Case (2018) Su 01 Min Chu No. 232, 233 and 234  
7 China's Reply to  European Union  Question 78 in the Trade Policy Review . 
8 Wuhan Intermediate People's Court of Hubei Province, case ( 2020 ) E 01 Zhi Min Chu No.169.  
9 Shenzhen Intermediate People's Court of Guangdong Province case (2018) Yue 03 min Chu No. 335.  
10 Civil ruling of Shenzhen Intermediate People's Court of Guangdong Province (2018) Yue 03 min Chu 
No. 335 -1 WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  injunction issued by the Düsseldorf Court. The Shenzhen Intermediate People's Court referred to a 
decision by the Nanjing Intermediate People's Court in a case between Huawei and Conversant11 
that concerned the royalty  rate for the same patents concerned in the dispute before the Shenzhen 
Intermediate People's Court. Taking into account that decision the Shenzhen Intermediate People's 
Court concluded that Conversant was asking too high a rate from ZTE. Therefore it gran ted an anti -
suit injunction because otherwise ZTE would either be forced to withdraw from the German market 
or be forced to accept the offer of Conversant and reach a settlement with it.  The decision by the 
Nanjing Intermediate People's Court was appealed and was the subject of the SPC decision of 28 
August 2020. The Shenzhen Intermediate People's Court also referred to that SPC trial, noting it 
was in progress. The Shenzhen Intermediate People's Court granted the injunction based on the 
provisions of the C ivil Procedure Law.  
3. OPPO v Sharp  - Shenzhen Intermediate People's Court   
 
On 25 March 2020, the Shenzhen Intermediate People's Court accepted a standard essential patent 
licensing dispute case filed by OPPO and OPPO Shenzhen ( "OPPO ") against Sharp Cor poration and 
Scienbizip Japan Corporation.12 OPPO requested the court, amongst other things, to determine the 
global licensing conditions, including but not limited to, the licensing royalty rate, for OPPO's 
intelligent terminal products, regarding Wi -Fi related SEPs, 3G related SEPs, and 4G related  SEPs. 
In or around October 2020, OPPO applied for act preservation requesting the Court, first, to prohibit 
Sharp and its affiliates from applying for judicial injunctions (including permanent injunction and 
temporary injunction) or other similar relief m easures in other countries or regions. Secondly, OPPO 
sought to prohibit Sharp and its affiliates from initiating patent infringement lawsuits or applying for 
judicial injunctions (including permanent injunction and temporary injunction) or other similar r elief 
measures against OPPO in other countries or regions.  
On 16 October 2020, the Shenzhen Intermediate People's Court issued an anti -suit injunction in the 
abovementioned case.13 It prohibited Sharp, under the sanction of daily penalties, from initiati ng a 
patent infringement case or requesting an injunction against OPPO and its affiliates based on its 
WiFi, 3G and 4G standard essential patents involved in that case anywhere in the world. The 
Shenzhen Intermediate People's Court granted the injunction b ased on the provisions of the Civil 
Procedure Law. On 19 August 2021, the Supreme People 's Court rejected the appeal by Sharp 
against the Shenzhen Intermediate People's Court decision in relation to the court 's jurisdiction.   
4. Samsung v Ericsson  - Wuhan  Intermediate People's Court   
 
On 7 December 2020, the Wuhan Intermediate People 's Court accepted a case filed by several 
Samsung entities against Ericsson in relation to the global licensing terms of 4G and 5G SEPs held 
or controlled by Ericsson and its subsidiaries for Samsung 's communications products, including 
royalty rates, in accordance with FRAND principles.14 
 
On 14 December 2020, Samsung filed an application for act preservation in the form of an anti -suit 
injunction with the Wuhan Intermediate People's Court. The Court issued an anti -suit injunction on 
25 December 2020. It prohibited Ericsson, under the sanction of daily penalties, from requesting, 
before any other courts either in or outwith China, an injunction against Samsung based on its 4G 
and 5G patents. It also prohibited Ericsson from enforcing existing injunctions or from deciding 
licence questions anywhere in the world. The anti -suit injunction includes an anti -anti-suit injunction 
prohibiting Ericsson from requesting any other courts e ither in or outwith China to order Samsung 
to withdraw its application for anti -suit injunction in this case. The Wuhan Intermediate People's 
Court granted the injunction based on the provisions of the Civil Procedure Law, and the Supreme 
People's Court's Provisions on Several Issues Concerning the Application of Law in Examining Act 
Preservation Cases in Intellectual Property Disputes as interpreted in the SPC decision of 28 August 
 
11 Decision of 16 September 2019 in Case (2018) Su 01 Minchu 232, 233, 234. 2019 年 9 月 16 日南京中
院做出（  2018）苏 01 民初232、233、234 号民事判 . 
12 Shenzhen Intermediate People's Court of Guangdong Province case  (2020) Yue 03 Minchu No. 689.  广
东省深圳市中 级人民法院（ 2020）粤03民初689号之一民事裁定 书. 
13 Civil ruling of Shenzhen Intermediate Peop le's Court of Guangdong Province, of 16 October 2020, in 
case (2020) Yue 03 Minchu No. 689. 广东省深圳市中 级人民法院（ 2020）粤03民初689号之一民事裁定 书. 
14 Wuhan Intermediate People's Court of Hubei Province case (2020) E 01 Zhi Min Chu No. 743. (2020) 
鄂01 知民初 743 号 WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  2020. Ericsson requested the Wuhan Intermediate People's Court to review th e decision. On 10 
March 2021, the Wuhan Intermediate People's Court rejected that.  
 
1.1.2 Worldwide anti -suit injunctions supported by the SPC  
 
The SPC has confirmed that Chinese courts can put in place worldwide anti -suit injunctions and that 
this is in line with the SPC interpretation of the Civil Procedure Law. In a report presenting the 10 
"big, typical " IP cases of 202015, the SPC included the Shenzhen Intermediate People's Court 
Decision in the case of OPPO v Sharp , which put in place a worldwide an ti-suit injunction that 
prohibited a patent holder from initiating patent infringement cases, requesting injunctions or other 
relief measures for all of its patents, with daily fines of 1 million RMB in case of violation.  The SPC 
noted that this decision was in line with its interpretation of the Civil Procedure Law and policy. The 
SPC selected these cases in cooperation with the Provincial High Courts, in order to function as an 
example and guidance for courts.16  
On appeal on a question of jurisdiction, the SPC also confirmed that the Shenzhen Intermediate 
Court has jurisdiction to set global rates for the standard essential patents at issue in the case.17 
Several court decisions  state that the anti -suit injunctions issued aim to avoid that  the applicant is 
forced to sign a licence for the patents it implements, which includes a rate for Chinese patents that 
the court considers too high.  
Having regard to the above, the measures at issue in this consultation request are the following:  
First, the anti -suit injunction policy maintained by China as a measure of general and prospective 
application prohibiting a party in patent enforcement cases in China from applying for enforcement 
of judgments of a non -Chinese court in the territories of other M embers or from seeking judicial 
relief outwith the jurisdiction of Chinese courts.  
Second, the continued issuance by Chinese courts of anti -suit injunctions in successive patent 
enforcement cases prohibiting a party from applying for enforcement of judgme nts of a non -Chinese 
court in the territories of other Members or from seeking judicial relief outwith the jurisdiction of 
Chinese courts.  
Third, the abovementioned specific instances of application by Chinese courts of anti -suit injunctions 
in patent enf orcement cases prohibiting a party from applying for enforcement of judgments of a 
non-Chinese court in the territories of other Members or from seeking judicial relief outwith the 
jurisdiction of Chinese courts.  
 
1.2. Legal instruments constituting these measures  
 
The legal instruments through which China imposes and administers these measures, include, inter 
alia, the following, operating separately or collectively:  
 
- Civil Procedure Law of the People 's Republic of China.  
- National Pe ople's Congress Standing Committee Opinions and Suggestions on People's 
Courts' IP trial work Report , of 21 October 2021, published 18 Novembe r 2021.18  
- Provisions of the Supreme People's Court on Several Issues Concerning the Application of 
Law in the Review of Act Preservation in Intellectual Property Disputes (approved by the 
1755th conference of the judicial committee of the Supreme Peopl e's Court on 26 November 
2018, to be enacted from January 1, 2019) Fa Shi [2018] No. 21.  
 
15 Published on  22 April 2021. http://www.court.gov.cn/zixun -xiangqing -297991.html# . Consulted on 
11 January 2022. 2020 年中国法院 10大知识产权案件和 50件典型知 识产权案例 , 来源：最高人民法院 . 
16 Published on 22 April 2021. http://www.court.gov.cn/zixun -xiangqing -297991.html# . Consulted on 
11 January 2022. 2020 年中国法院 10大知识产权案件和 50件典型知 识产权案例 , 来源：最高人民法院 . Page 1.  
17 Supreme People 's Court  of the People 's Republic of China, Civil Ruling, of 19 August 2021, in the case 
of OPPO and SHARP, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 517.  
18 www.npc.gov.cn/npc/c30834/202111/f139a85daf0a4f5da34104bd8cc08643.shtml . WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  - Decision by the Supreme People 's Court of the People 's Republic of China, Civil Ruling, of 
August 28, 2020 in Cases No. 732, No. 733 and No. 734, between Huawei Tech nology Co. 
LTD and Conversant Wireless Licensing.  
- Decision by the Supreme People 's Court of the People 's Republic of China , Civil Ruling , of 19 
August 2021, in the case of OPPO and SHARP, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 
517. 
- Summary of the Annual Report of the Supreme People 's Court on Intellectual Property Cases 
(2020).19  
- Intellectual Property Tribunal of the Supreme People's Court Report 10 typical cases of 
technical intellectual property in 2020 .20 
- Supreme People's Court, 10 "big, typical " intellectual property cases and 50 "typical " 
intellectual property cases in Chinese courts in 2020.21  
- Adjudication guidelines as contained in the document summarizing the gist of the decisions 
of the intellectual property court of the Supreme People's Court (2020). 22 
- Supreme People's Court 'Report on People's Courts' IP trial work' of 21 October 2021.23  
- Decision by Wuhan Intermediate People's Court in case of Xiaomi v InterDigital putting in 
place an anti -suit injunction.24  
- Decision by Shenzhen Intermediate People's Court in case of ZTE v Conversant -putting in 
place an anti -suit injunction.25   
- Decision by Shenzhen Intermediate People's Court OPPO v Sharp - putting in place an anti -
suit injunction.26  
- Decision by Wuha n Intermediate People's Court in case of Samsung v Ericsson - putting in 
place an anti -suit injunction.27  
- Guangdong High Court annual report.28  
 
19 Published on 26 February 2021 on http://www.court.gov.cn/zixun -xiangqing -298771.html# . 
Consulted on 11 January 20 22. 最高人民法院知 识产权案件年度报告（ 2020）来源：人民法院 报 
20 Published on 26 February 2021. http://www.court.gov.cn/zixun -xiangqing -288071.html . Consulted on 
11 January 202211 January 2022. 最高人民法院知 识产权法庭 2020年技术类知识产权典型案例的通报 - 最高人民法院知 识
产权法庭副庭长  
21 Published on 22 April 2021. http://www.court.gov.cn/zixun -xiangqing -297991.html# . Consult ed on 
11 January 2022. 2020 年中国法院 10大知识产权案件和 50件典型知 识产权案例 , 来源：最高人民法院 . Published by 
notice of 22 April 2021. 法办〔2021〕146号, 最高人民法院 办公厅, 关于印发2020年中国法院 10大知识产权案件和 50件典
型知识产权案例的通知 . 
22 Published on 26 February 2021 on http://www.court.gov.cn/zixun -xiangqing -288131.html .  Consulted 
on 11 January 2022. 最高人民法院知 识产权法庭裁判要旨（ 2020).  
23 www.npc.go v.cn/npc/c30834/202110/2adb18d160c945e989bc20df3641cffc.shtml . 
24 Civil ruling of  Wuhan Intermediate People's Court, of 23 September 2020, in case of Xiaomi v 
InterDigital,  ( 2020 ) E 01 Zhi Min Chu No.169.  
25 Civil ruling of Shenzhen Intermediate People's Court of Guangdong Province (2018) Yue 03 min Chu 
No. 335 -1 
26 Civil ruling of Shenzhen Intermediate People's Court of Guangdong Province, of 16 October 2020,  
(2020) Yue 03 Minchu No.689 Case reference: 广东省深圳市中 级人民法院（ 2020）粤03民初689号之一民 事裁定书. 
27 Civil ruling of  Wuhan Intermediate People's Court, of 25 December 2020, in case of Samsung v 
Ericsson, (2020) E 01 Zhi Min Chu No. 743.  (2020) 鄂01 知民初 743 号 
28 Consulted on 11 January 2022. http://www.gdcourts.gov.cn/index.php?v=show&cid=170&id=56124 . WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  - Guangdong China Communist Party Political and legal committee.29  
- Hubei High Court 's annual report.30  
This request  also covers other court decisions with a similar content based on these documents or 
any other related measures and includes any annexes or schedules to these measures and 
amendments, supplements, replacements, renewals, extensions or imple menting measures.  
 
1.3.  Legal basis for the complaint in respect of China's measures  
 
The measures described above appear to be inconsistent with China 's obligations under the covered 
agreements, in particular:  
 
- Article 1.1, first sentence, of the TRIPS Agreement, in conjunction with Article 28.1 of the 
TRIPS Agreement , because China 's measures restrict, or seek to restrict, the exercise by 
patent owners of their exclusive rights to prevent third parties not havin g the owner 's 
consent from making, using, offering for sale, selling, or importing the product that is the 
subject matter of a patent or that is obtained directly by a patented process.  
- Article 1.1, first sentence, of the TRIPS Agreement, in conjunction  with Article 28.2 of the 
TRIPS Agreement, because China 's measures, by prohibiting access to non -Chinese courts 
for the owners, of the type of patents at issue, restrict, or seek to restrict, the exercise by 
patent owners of their right to conclude licens ing contracts.  
- Article 41.1, second sentence, of the TRIPS Agreement, because China 's measures create 
barriers to legitimate trade and fail to provide for safeguards against the abuse of 
enforcement procedures . China 's measures create barriers to legitim ate trade because they 
prevent, or seek to prevent, patent owners in other Members from availing themselves of 
enforcement procedures that permit effective action against any act of infringement of 
intellectual property rights covered by the TRIPS Agreemen t, including expeditious remedies 
to prevent infringements and remedies, which constitute a deterrent to further 
infringements. Moreover, by granting worldwide anti -suit injunctions with little consideration 
of their impact on the enforcement procedures in  other Members, China fails to provide for 
safeguards against  the abuse of litigation procedures.  
- Article 1.1, first sentence, of the TRIPS Agreement, in conjunction with Article 44.1 of the 
TRIPS Agreement, because China's measures prevent, or seek to prevent, the judicial 
authorities of the other Members from ordering a party to desist from an infringement at the 
request of patent owners involved in patent litigation in China.  
- Section 2(A)(2) of the Proto col on the Accession of the People's Republic of China, as China, 
by issuing worldwide anti -suit injunctions for act preservation in patent litigation and 
imposing maximum penalties on a daily basis, has not applied and administered its laws, 
such as, inter alia, the Civil Procedure Law of the People 's Republic of China,  in a uniform, 
impartial and reasonable manner.  
2. CHINA 'S FAILURE  TO PUBLISH  FINAL  DECISIONS  PERTAINING  TO THE  SUBJECT  
MATTER  OF THE  TRIPS  AGREEMENT  
 
2.1. Description of the measures  
 
China has failed to publish at least three decisions that were mentioned in official Chinese 
government publications and referenced as guiding materials.  
 
 
29 Consulted on 11 January 2022. http://www.gd zf.org.cn/zwgd/202104/t20210422_1073020.htm  
30 Consulted on 27 October 2021 
https://hubeigy.chinacourt.gov.cn/article/detail/r2021/04/id/5981790.shtml  WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  In a report presenting the ten big, typical IP cases of 202031 the SPC included the Shenzhen 
Interme diate People's Court Decision in the case of OPPO v Sharp.  The Guangdong High Court in its 
annual report included the Shenzhen ZTE v Conversant  decision as a "typical case ."32 The Guangdong 
China Communist Party Political and Legal Committee also publishe d the above Guangdong High 
Court annual report remarking that this showed Guangdong's leading role in building intellectual 
property protection.33 The Hubei High Court 's annual report included the Wuhan Intermediate 
People 's Court Xiaomi v InterDigital  decision as a "typical case ."34 China's reply to the European 
Union TRIPS information request35 also notes these cases " provide references for judicial practices ." 
The decisions in these three cases appear not to have been published. For example, they cann ot be 
found online on China 's official website for judgements, which the European Union understands to 
be the official medium for publication.36  
 
2.2. Legal basis for the claim  
 
The elements described above appear to be inconsistent with China 's obligations under the TRIPS 
agreements, in particular Article 63.1 of the TRIPS Agreement, because China has not published, or 
made publicly available, in such a manner as to enable governments and right holders to become 
acquainted with them, final judic ial decisions of general application, made effective by China 
pertaining to the subject matter of the TRIPS Agreement.  
 
 
3. CHINA 'S FAILURE  TO SUPPLY  INFORMATION  ON FINAL  JUDICIAL  DECISIONS  OF 
GENERAL  APPLICATION  PERTAINING  TO THE  SUBJECT  MATTER  OF THE  
TRIPS AGREEMENT  
 
3.1. Description of the measures  
 
On 6 July 2021, the European Union sent an official request for information pursuant to Article 63.3 
of the TRIPS Agreement requesting further information on a number of recent judicial decisions and 
regulati ons relating to patents.37 The request concerned in particular court cases where decisions 
were taken in court procedures related to patent licensing and royalty rates, and enforcement of 
injunctions. These decisions were mentioned in official Chinese gov ernment publications and 
referenced as guiding materials. The European Union explicitly requested China to provide the text 
of three judicial decisions. On 7 September 2021, China answered that there is no obligation under 
the TRIPS Agreement to respond to  that request and provided only two paragraphs with little detail.38   
 
3.2. Legal basis for the claim  
 
The elements described above appear to be inconsistent with China 's obligations under the TRIPS 
agreements, in particular  Article 63.3 of the TRIPS Agreement, because China, in response to the 
European Union's written request, failed to provide a complete description of the measures that it 
applies . 
 
*** 
The measures maintained by China relating to the protection and enforce ment of intellectual 
property rights, China 's failure to publish final decisions pertaining to the subject matter of the TRIPS 
Agreement, and China 's failure to supply information on final judicial decisions of general application 
pertaining to the subject  matter of the TRIPS Agreement, appear to nullify or impair the benefits 
accruing to the European Union directly or indirectly under the covered agreements.  
 
31 Published o n 22 April 2021. http://www.court.gov.cn/zixun -xiangqing -297991.html# . Consulted on 
11 January 2022. 2020 年中国法院 10大知识产权案件和 50件典型知 识产权案例 , 来源：最高人民法院 . 
32 Consulted on 11 January 2022. http://www.gdcourts.gov.cn/index.php?v=show&cid=170&id=56124 . 
33 Consulted on 11 January 2022. http://www.gdzf.org.cn/zwgd/202104/t20210422_1073020.h tm 
34 Consulted on 27 October 2021. 
https://hubeigy.chinacourt.gov.cn/article/detail/r2021/04/id/5981790.shtml  
35 Communication IP/C/W/683.  
36 https://wenshu.court.g ov.cn/  
37 Communication IP/C/W/682.  
38 Communication IP/C/W/683.  WT/DS611/1 • IP/D/43 • G/L/1427  
 
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  The European Union reserves the right to raise additional measures and claims, including under 
other provisions of the covered agreements, regarding the above matters during the course of the 
consultations and in any future request for panel proceedings.  
The European Union looks forward to receiving China 's reply to this request and to finding a mutually 
convenient date for the consultations.   
 
__________