CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 9 December 2022
Document codes: WT/DS611/5
Complainant: EU
Respondent: China
Third parties: Australia, Brazil, Canada, Colombia, India, Indonesia, Japan, South Korea, Norway, Peru, Russia, Singapore, Switzerland, Taiwan, Thailand, Ukraine, United Kingdom, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 1.1, 28.1, 28.2, 41.1, 44.1, 63.1, 63.3  Intellectual Property (TRIPS)Section 2(A)(2)  Protocol of Accession

CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION
The following communication, dated 7 December 2022, from the delegation of the European Union
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On 18 February 2022 the European Union requested 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
affecting the protection and enforcement of intellectual property rights and with regard to China 's
failure to carry out its obligations under Articles 63.1 and 63.3 of the TRIPS Agreement.
The European Union held consultations with China on 6, 7 and 12 April 2022 with a view to reaching
a mutually satisfactory settlement of the matter. Unfortunately, the consultations failed to settle the
dispute.
Therefore, the European Union respectfully requests, pursuant to Article 4 and 6 of the DSU, Article
64.1 of TRIPS Agreement, and Article XXII:1 of the GATT, that the Dispute Settlement Body establish
a panel to examine this matter, based on the standard terms of reference as set o ut in Article 7.1
of the DSU.
1. Measure adversely affecting the protection and enforcement of intellectual
property rights
1.1. Description of the measure
China has introduced, maintains, and implements a policy which, in the context of judicial procedures
concerning the enforcement of intellectual property rights, empowers Chinese courts to prohibit
patent holders from asserting their rights protected by the TRIPS Agreement in other jurisdictions .
This prohibition materialises through the issuance by Chinese courts of provisional measures ("anti-
suit injunctions")1 that forbid patent holders to commence, continue or enforce the results of any
legal proceedings before any non -Chinese court and which are enforced through daily penalties in
case of infringement. Such penalties can be, and have been, set at the maximum level allowed for
under Chinese Civil Procedure Law and they accumulate daily.
This policy was first introduced by means of a decision by China's Supreme People 's Court ("SPC")
dated 28 August 2020 in Huawei v Conversant ("SPC decision of 28 August 2020") 2. The SPC
established that Article 100 of the Civil Procedure Law of the Peop le's Republic of China ("Civil

1 China's Civil Procedure Law calls the provisional measure an "act preservation measure".
2 Supreme People's Court of the People's Republic of China, Civil Ruling of 28 August 2020, in cases
between Huawei Technology Co. LTD and Conversant Wireless Licensing S. à r. 1. (2019) Zui Gao Fa Zhi Min
Zhong No. 732, No. 733 and No. 734, Zhi yi. 中华人民共和国最高人民法院，华为与康文森案（2019）最高法知民终
732、733、734号之一裁定书.

Procedure Law")3 allows a Chinese court to adopt a provisional measure 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 possible under Article 115 (1) of the Civil
Procedure Law 4 of 1 million RMB per day. By decisi on of 11 September 2020, the SPC denied
Conversant's request for reconsideration of the SPC decision of 28 August 2020 and maintained the
anti-suit injunction and the daily penalties .5 The European Union understands that anti-suit
injunctions generally remain valid until the final judgment in the case before the Chinese court
becomes effective.6
The policy has been further elaborated by Chinese courts in at least four other cases where anti-suit
injunctions were issued. In three of these cases, the anti-suit injunctions have been confirmed upon
review and maintained. In addition, the Hubei Province High Court, Guangdong Province High Court
and the Guangdong Province Communist Party Political and Legal Committee confirmed the
correctness and exemplary char acter of those judicial decisions in their respective Provinces. The
SPC has further elaborated and promoted the policy in a number of official and public documents
issued in 2021 and 2022. The National People 's Congress Standing Committee has endorsed the
policy as applied in 2021 and 2022. According to official statements issued in 2021 and 2022, the
policy will continue to be applied in the future.
1.1.1 Four anti-suit injunctions issued by Intermediate People's Courts
Patent holders are prohibited from asserting their rights before a non-Chinese court through the
adoption of anti-suit injunctions, as described above. After the SPC decision of 28 August 2020, this
has been done in a number of decisions adopted by Chinese courts, including:
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 InterDigital, Inc. in relation to the setting of a lic ence fee rate for
standard essential patents ("SEPs"). 7 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 granted Xiaomi's request and issued an anti-suit injunction.8 That anti-suit 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 them from 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 involved in the case. The Wuhan
Intermediate People's Court relied 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 Act
Preservation Cases in Intellectual Property Disputes as interpreted in the SPC decision of 28 August

3 China's Civil Procedure Law, in its version of 2017 applicable at the time the SPC decision of 28 August
2020 was issued, was later amended on 24 December 2021. T the revision entered into force in 1 January
2022 ("China's Civil Procedure Law 2022"). The text of, Article 100 remained unchanged, but was renumbered
to Article 103. 中华人民共和国民事诉讼法 (根据2021年12月24日第十三届全国人民代表大会常务委员会第三十二次会议《关
于修改〈中华人民共和国民事诉讼法〉的决定》第四次修正）.
4 In China's Civil Procedure Law 2022 the article was renumbered to Article 118.
5 Supreme People's Court of the People's Republic of China, Civil Ruling of 11 September 2020, in cases
between Huawei and Conversant (2019) Zui Gao Fa Zhi Min Zhong No. 732, 733, 734 Zhi er. 中华人民共和国最高
人民法院,华为与康文森案(2019)最高法知民终 732、733、734 号之二裁定书.
6 During China's 2021 Trade Policy Review, in reply to Question No. 78 by the European Union on the
duration of anti-suit injunctions, 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 See Wuhan Intermediate People's Court of Hubei Province, Civil ruling of 23 September 2020, in case
between Xiaomi and InterDigital (2020) E 01 Zhi Min Chu No.169 Zhi yi. 湖北省武汉市中级人民法院, 小米与交互数
字案（2020）鄂01知民初169号之一裁定书.
8 Wuhan Intermediate People's Court of Hubei Province, Civil ruling of 23 September 2020, in case
between Xiaomi and InterDigital (2020) E 01 Zhi Min Chu No.169 Zhi yi. 湖北省武汉市中级人民法院,小米与交互数字
案（2020）鄂01知民初169号之一裁定书.

2020. By decision of 4 December 2020, the Wuhan Intermediate People's Court denied InterDigital's
request for reconsideration of the decision of 23 September 2020, and maintained the anti -suit
injunction and the daily penalties.9
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 a decision on the licensing
conditions for the patents Conversant claimed to be essential for Chinese standards. 10 The day of
the SPC Decision of 28 August 2020, ZTE applied to the Shenzhen Intermediate People 's Court for
an act preservation measure prohibiting enforcement of an injunction by a foreign court.
On 28 September 2020, the Shenzhen Intermediate People's Court issued an anti-suit injunction.11
The anti-suit injunction prohibited Conversant, under the sanction of daily penalties, from enforcing
an 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 Conversant 12
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 a too high rate from ZTE. Therefore it granted 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 anti -suit injunction based
on the provisions of the Civil Procedure Law.
3. OPPO v Sharp – Shenzhen Intermediate People's Court
On 25 March 2020, the Shenzhen Intermediate People's Court accepted a SEP licensing dispute case
filed by OPPO and OPPO Shenzhen ("OPPO") against Sharp Corporation and Scienbizip Japan
Corporation.13 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 an act preservation measure requesting the Court, first, to prohibit Sharp
and its affiliates from applying for judicial injunctions (including a permanent injunction and a
temporary injunction) or other similar relief measures 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 relief
measures against OPPO in other countries or regions.

9 Wuhan Intermediate People's Court, Civil ruling of 04 December 2020, in case between Xiaomi and
InterDigital, (2020) E 01 Zhi Min Chu No.169 Zhi er. 湖北省武汉市中级人民法院, 小米与交互数字案（2020）鄂01知民
初169号之二裁定书.
10 See Shenzhen Intermediate People's Court of Guangdong Province, Civil ruling of 28 September 2020,
in case , in case between ZTE and Conversant (2018) Yue 03 min Chu No. 335 Zhi yi. 广东省深圳市中级人民法院,
中兴与康文森案（2018）粤03民初335号之一裁定书.
11 Shenzhen Intermediate People's Court of Guangdong Province, Civil ruling of 28 September 2020, in
case between ZTE and Conversant (2018) Yue 03 Min Chu No. 335 Zhi yi. 广东省深圳市中级人民法院，中兴与康文
森案（2018）粤03民初335号之一民事裁定书.
12 Nanjing Intermediate People's Court of Jiangsu Province Decision of 16 September 2019, in case
between Huawei and Conversant (2018) Su 01 Min Chu No. 232, 233, 234. 江苏省南京市中级人民法院，华为与康文
森案（2018）苏 01 民初232、233、234 号，2019 年 9 月 16 日判决书.
13 See Shenzhen Intermediate People's Court of Guangdong Province, Civil ruling of 16 October 2020, in
case between OPPO and Sharp (2020) Yue 03 Min Chu No. 689 Zhi yi. 广东省深圳市中级人民法院, OPPO与夏普案（
2020）粤03民初689号之一民事裁定书.

On 16 October 2020, the Shenzhen Intermediate People's Court granted OPPO's request and issued
an anti-suit injunction.14 It prohibited Sharp, under the sanction of daily penalties, from initiating a
patent infringement case or requesting an injunction against OPPO and its affiliates based on its
WiFi, 3G and 4G SEPs involved in that case anywhere in the world. The Shenzhen Intermediate
People's Court granted the anti -suit injunction based on the provisions of the Civil P rocedure Law.
On 19 August 2021, the SPC rejected the appeal by Sharp against the Shenzhen Intermediate
People's Court decision on jurisdiction. The SPC also ruled Shenzhen Intermediate People 's Court
has jurisdiction to set global rates for the SEPs concerned.
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 fair, reasonable, and non-discriminatory ("FRAND") principles.15
On 14 December 2020, Samsung filed an application for an act preservation measure 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 2020.16 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
requesting decisions on licence questions anywhere in the world. The an ti-suit injunction includes
an anti-anti-suit injunction prohibiting Ericsson from requesting any other courts either in or outwith
China to order Samsung to withdraw its application for an 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 2020 . Ericsson requested the Wuhan Intermediate People 's Court to review
the decision. By Decision of 10 March 2021, the Wuhan Intermediate People's Court denied Ericsson's
request for reconsideration of the decision of 25 December 2020, and maintained the anti -suit
injunction.17
Worldwide anti-suit injunctions approved of by the SPC
The SPC has confirmed that Chinese courts can put in place worldwide, prospective anti -suit
injunctions, including a prohibition from initiating any patent infringement case before any non -
Chinese jurisdiction, and a prohibition to request an injunction or similar relief measure, under the
sanction of 1 million RMB daily penalties, not limited to specif ic scope, conditions or circumstances
related to the concrete cases submitted to the court in question.
Every year, the SPC selects ten IP cases in cooperation with the Provincial High Courts, for them to
serve as an example and guidance for courts ("top ten typical IP cases").18 In 2020, the SPC selected
the Shenzhen Intermediate People's Court Decision dated 16 October 2020 in OPPO v Sharp, which

14 Shenzhen Intermediate People's Court of Guangdong Province, Civil ruling of 16 October 2020, in
case between OPPO and Sharp (2020) Yue 03 Minchu No. 689 Zhi yi. 广东省深圳市中级人民法院, OPPO与夏普案（
2020）粤03民初689号之一民事裁定书.
15 See Wuhan Intermediate People's Court of Hubei Province, Civil ruling of 25 December 2020, in case
between Samsung and Ericsson (2020) E 01 Zhi Min Chu No. 743. 湖北省武汉市中级人民法院，三星与爱立信案
(2020) 鄂01 知民初743 号裁定书.
16 Wuhan Intermediate People's Court of Hubei Province, Civil ruling of 25 December 2020, in case
between Samsung and Ericsson (2020) E 01 Zhi Min Chu No. 743 . 湖北省武汉市中级人民法院，三星与爱立信案
(2020) 鄂01 知民初743 号裁定书.
17 Wuhan Intermediate People's Court of Hubei Province, Civil ruling of 10 March 2021, in case between
Samsung and Ericsson, (2020) E 01 Zhi Min Chu No. 743, Zhi er. 湖北省武汉市中级人民法院, 三星与爱立信案（
2020）鄂01知民初743号之二裁定书.
18 Published on 22 April 2021. 最高人民法院, 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. Page
1.

put in place such an anti-suit injunction, as one of the 2020 top ten typical IP cases.19 The SPC noted
that this decision was in line with its interpretation of the Civil Procedure Law and policy.
The Shenzhen Intermediate People's Court had put in place a global anti-suit injunction in this case,
as it concerned a global royalty rate dispute. This decision and the other courts' decisions putting in
place anti-suit injunctions state that they aim to avoid that the applicant is forced to sign a licence
for the patents it implements with a rate the Chinese court considers inappropriate. The SPC ruled
in OPPO v Sharp that Chinese courts have jurisdiction to set global rates for SEPs.20 In a decision of
7 September 2022, the SPC re -affirmed the right for Chinese courts to set global FRAND licensing
rates for SEPs.21
China has not applied and administered its laws, regulations and other measures in a
uniform, impartial and reasonable manner
The rules for act preservation measures in intellectual property disputes are set in the Civil Procedure
Law of the People 's Repu blic of China, in particular Article 103 and 104, the 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 (as last amended on 26 November 2018)22 and the
Interpretation of the Supreme People 's Court on the Application of the Civil Procedure Law of the
People's Republic of China ( as last amended on 22 March 2022).23 By the abovementioned rulings
on act preservation measures in the form of anti-suit injunctions of the SPC in Huawei v Conversant,
and rulings on the four act preservation measures in the form of anti -suit injunctions issued by
Intermediate People's Courts, which are based inter alia on Article 103 of the Civil Procedure Law of

19 Published on 22 April 2021. 最高人民法院, 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.
20 Supreme People's Court of the People's Republic of China, Civil Ruling of 19 August 2021, in case
between OPPO and Sharp, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 517. 最高法院，OPPO与夏普案（2020）最高
法知民辖终517号裁定书.
21 Supreme People's Court of the People's Republic of China, Civil Ruling of 7 September 2022, in case
between OPPO and Nokia (2022) Zui Gao Fa Zhi Min Xia Zhong No. 167. 最高法院，OPPO与诺基亚（2022）最高法
知民辖终167号裁定书.
22 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, as last amended on 26 November 2018, entering
into force on 01 January 2019. 最高人民法院关于审查知识产权纠纷行为保全案件适用法律若干问题的规定,已于2018年11
月26日由最高人民法院审判委员会第1755次会议通过，现予公布，自2019年1月1日起施行, 法释〔2018〕21号。
23 Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the
People's Republic of China (2022), as last amended on 22 March 2022, , entering into force on 10 April 2022,
Fashi 11 hao. 最高人民法院关于修改《最高人民法院关于适用＜中华人民共和国民事诉讼法＞的解释》的决定 (2022)（法释
〔2022〕11号）,《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》2014年12月18日最高人民法院审判委员会
第1636次会议通过；根据2020年12月23日最高人民法院审判委员会第1823次会议通过的《最高人民法院关于修改〈最高人民
法院关于人民法院民事调解工作若干问题的规定〉等十九件民事诉讼类司法解释的决定》第一次修正；根据2022年3月22日最
高人民法院审判委员会第1866次会议通过的《最高人民法院关于修改〈最高人民法院关于适用《中华人民共和国民事诉讼法》
的解释〉的决定》第二次修正，该修正自2022年4月10日起施行.

the People 's Republic of China, China has established an anti -suit injunction policy, 24 which it
describes as an "anti-suit injunction system with Chinese characteristics".25
The rules on fines for violation of act preservation measures are set in the Civil Procedure Law of
the People's Republic of China, in particular Article 118, and Article 184 of the Interpretation of the
Supreme People's Court on the Application of the Civ il Procedure Law of the People 's Republic of
China (as last amended in 2022).26 By the abovementioned rulings on act preservation measures in
the form of anti -suit injunctions of the SPC in Huawei v Conversant , and the rulings on act
preservation measures in the form of anti-suit injunctions issued by Intermediate People's Courts in
Xiaomi v Interdigital, ZTE v Conversant and OPPO v Sharp, which included inter alia daily fines in
case of violation of the ruling based on Article 115 of the Civil Procedure Law of the People's Republic
of China.27 China has established specific rules, allowing for the imposition of daily fines, up to the
maximum level of Article 115 (1) of the Civil Procedure Law, in the event of violation of an anti-suit
injunction.28
Through the above China has not applied and administered its laws, regulations and other measures
in a uniform, impartial and reasonable manner.

24 See for example: 1) Intellectual Property Court of the Supreme People's court, Report on 10 typical
cases of technical intellectual property in 2020, published on 26 February 2021. 最高人民法院知识产权法庭 , 2020
年10件技术类知识产权典型案例. 2) Intellectual Property Court of the Supreme People's Court publication, "The
first anti-suit injunction issued by China in an intellectual property trial—The case collegial panel explained in
detail the dispute over licensing of standard essential patents between Conversant and Huawei." 最高人民法院知
识产权法庭, 中国知识产权审判发出的首例禁诉令 ——案件合议庭详解康文森公司与华为公司标准必要专利许可纠纷案.
https://ipc.court.gov.cn/zh-cn/news/view-1056.html 3) Supreme People's Court, top ten "big, typical"
intellectual property cases and 50 "typical" intellectual property cases in Chinese courts in 2020. 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,法办〔2021〕146号. 4) Supreme
People's Court Report on the implementation of the "Decision of the Standing Committee of the National
People's Congress on Several Issues Concerning Litigation Procedures in Patent and Other Intellectual Property
Cases" of 27 February 2022. 最高人民法院关于《全国人民代表大会常务委员会关于专利等知识产权案件诉讼程序若干问题
的决定》实施情况的报告, 2022年2月27日在第十三届全国人民代表大会常务委员会第三十三次会议上.
25 See Supreme People's Court Report on the implementation of the "Decision of the Standing
Committee of the National People's Congress on Several Issues Concerning Litigation Procedures in Patent and
Other Intellectual Property Cases" of 27 February 2022. 最高人民法院关于《全国人民代表大会常务委员会关于专利等
知识产权案件诉讼程序若干问题的决定》实施情况的报告, 2022年2月27日在第十三届全国人民代表大会常务委员会第三十三次
会议上.
26 Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the
People's Republic of China (2022), as last amended on 22 March 2022, entering into force on 10 April 2022,
Fashi 11 hao. 最高人民法院关于修改《最高人民法院关于适用＜中华人民共和国民事诉讼法＞的解释》的决定 (2022)（法释
〔2022〕11号）,《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》2014年12月18日最高人民法院审判委员会
第1636次会议通过；根据2020年12月23日最高人民法院审判委员会第1823次会议通过的《最高人民法院关于修改〈最高人民
法院关于人民法院民事调解工作若干问题的规定〉等十九件民事诉讼类司法解释的决定》第一次修正；根据2022年3月22日最
高人民法院审判委员会第1866次会议通过的《最高人民法院关于修改〈最高人民法院关于适用《中华人民共和国民事诉讼法》
的解释〉的决定》第二次修正，该修正自2022年4月10日起施行.
27 Article 115 of the Civil Procedure Law in its version of 2017 was later renumbered as Article 118 of
the Civil Procedure Law in its version of 2022.
28 See for example: 1) Intellectual Property Court of the Supreme People's court, Report on 10 typical
cases of technical intellectual property in 2020, published on 26 February 2021. 最高人民法院知识产权法庭 , 2020
年10件技术类知识产权典型案例. 2) Adjudication guidelines as contained in the document summarizing the gist of
the decisions of the intellectual property court of the SPC (2020). 最高人民法院知识产权法庭裁判要旨 (2020). 3)
Supreme People's Court Report on the implementation of the "Decision of the Standing Committee of the
National People's Congress on Several Issues Concerning Litigation Procedures in Patent and Other Intellectual
Property Cases" of 27 February 2022. 最高人民法院关于《全国人民代表大会常务委员会关于专利等知识产权案件诉讼程序
若干问题的决定》实施情况的报告,2022年2月27日在第十三届全国人民代表大会常务委员会第三十三次会议上.

Having regard to the above, the measures at issue under Part 1 in this panel 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 litigation concerning SEPs in China from applying for enforcement
of judgments of any non -Chinese court in the territories of othe r Members or from seeking any
judicial relief outwith the jurisdiction of Chinese courts.
Second, the continued issuance by Chinese courts of anti -suit injunctions in successive cases
concerning SEPs 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.
Third, the abovementioned specific instances of application by Chinese courts of anti-suit injunctions
in cases concerning SEPs in China 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.
The European Union challenges these measures as such and also the instances of application by
various 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, in particular Articles 103, 104, and
118 of China's Civil Procedure Law 2022.29
- 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 (app roved by the
1755th conference of the judicial committee of the Supreme People's Court on 26 November
2018, to be enacted from 1 January 2019) Fa Shi [2018] No. 21.30
- Interpretation of the Supreme People 's Court on the Application of the Civil Procedure Law
of the People's Republic of China, adopted on 18 December 2014, as first amended on 23
December 2020, and amended for the second time on 22 March 2022 by the Judicial
Committee of the Supreme People's Court, with the last revision taking effect since 10 April
2022.31

29 This comprises China's Civil Procedure Law in the version of 2022, as well as previous versions and
later amendments. 中华人民共和国民事诉讼法（1991年4月9日第七届全国人民代表大会第四次会议通过 根据2007年10
月28日第十届全国人民代表大会常务委员会第三十次会议《关于修改〈中华人民共和国民事诉讼法〉的决定》第一次修正 根据
2012年8月31日第十一届全国人民代表大会常务委员会第二十八次会议《关于修改〈中华人民共和国民事诉讼法〉的决定》第
二次修正 根据2017年6月27日第十二届全国人民代表大会常务委员会第二十八次会议《关于修改〈中华人民共和国民事诉讼
法〉和〈中华人民共和国行政诉讼法〉的决定》第三次修正 根据2021年12月24日第十三届全国人民代表大会常务委员会第三
十二次会议《关于修改〈中华人民共和国民事诉讼法〉的决定》第四次修正）
30 最高人民法院关于审查知识产权纠纷行为保全案件适用法律若干问题的规定》已于2018年11月26日由最高人民法院
审判委员会第1755次会议通过，现予公布，自2019年1月1日起施行。
31 Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the
People's Republic of China (2022), as last amended by Decision of the Supreme People's Court of 22 March
2022, , entering into force on 10 April 2022, Fashi 11 hao. 最高人民法院关于修改《最高人民法院关于适用＜中华人民
共和国民事诉讼法＞的解释》的决定(2022)（法释〔2022〕11号）,《最高人民法院关于适用〈中华人民共和国民事诉讼法〉
的解释》2014年12月18日最高人民法院审判委员会第1636次会议通过；根据2020年12月23日最高人民法院审判委员会第
1823次会议通过的《最高人民法院关于修改〈最高人民法院关于人民法院民事调解工作若干问题的规定〉等十九件民事诉讼类
司法解释的决定》第一次修正；根据2022年3月22日最高人民法院审判委员会第1866次会议通过的《最高人民法院关于修改〈
最高人民法院关于适用《中华人民共和国民事诉讼法》的解释〉的决定》第二次修正，该修正自2022年4月10日起施行.

- Supreme People's Court of the People's Republic of China Civil Ruling of 28 August 2020, in
Cases between Huawei Technology Co. LTD and Conversant Wireless Licensing (2019) Zui
Gao Fa Zhi Min Zhong No. 732, No. 733 and No. 734, Zhi yi, putting in place an anti -suit
injunction.32
- Supreme People's Court of the People's Republic of China Civil Ruling of 11 September 2020,
in Cases between Huawei Technology Co. LTD and Conversant Wireless Licensing (2019) No.
732, No. 733 and No. 734, Zhi er - reviewing and maintaining the Decision of 28 August
2020 to put in place an anti-suit injunction.33
- Supreme People's Court of the People's Republic of China Civil Ruling of 19 August 2021, in
case between OPPO and Sharp, (2020) Zui Gao Fa Zhi Min Xia Zhong No. 517.34
- Supreme People's Court of the People's Republic of China Civil Ruling of 7 September 2022,
in the case between OPPO and Nokia (2022) Zui Gao Fa Zhi Min Xia Zhong No. 167.35
- Summary of the Annual Report of the Supreme People's Court on Intellectual Property Cases
(2020).36
- Intellectual Property Court of the Supreme People's Court Report 10 typical cases of technical
intellectual property in 2020.37
- Supreme People's Court, top ten "big, typical" intellectual property cases and 50 "typical"
intellectual property cases in Chinese courts in 2020.38
- Adjudication guidelines as contained in the document summarizing the gist of the decisions
of the intellectual property court of the SPC (2020).39
- SPC "Report on People's Courts' IP trial work" of 21 October 2021 at the 31st meeting of the
Standing Committee of the Thirteenth National People's Congress.40
- Standing Committee of the National People's Congress Opinions and Suggestions on the SPC
"Report on People's Courts' IP trial work" of 21 October 2021 , published on 18 November
2021.41
- SPC Report on the implementation of the "Decision of the Standing Committee of the
National People's Congress on Several Issues Concerning Litigation Procedures in Patent and
Other Intellectual Property Cases" of 27 February 2022 at the 33rd session of the Standing

32 中华人民共和国最高人民法院，华为与康文森案（2019）最高法知民终732、733、734号之一裁定书.
33 中华人民共和国最高人民法院，华为与康文森案（2019）最高法知民终732、733、734号之二裁定书.
34 中华人民共和国最高人民法院，OPPO与夏普案（2020）最高法知民辖终517号裁定书.
35 中华人民共和国最高人民法院，OPPO与诺基亚（2022）最高法知民辖终167 号裁定书.
36 Published on 26 February 2021. 最高人民法院知识产权案件年度报告（2020).
37 Published on 26 February 2021. 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.
38 Published on 22 April 2021. 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,法办〔2021〕146号.
39 Published on 26 February 2021. 最高人民法院知识产权法庭裁判要旨 (2020). English version published 26
April 2021.
40 最高人民法院关于人民法院,知识产权审判工作情况的报告, 2021年10月21日在第十三届全国人民代表大会常务委员
会第三十一次会议上.
41 Opinions and suggestions on the report on intellectual property trial work of the People's Court,
November 18, 2021. 十三届全国人大常委会,第三十一次会议,对人民法院知识产权审判工作情况报告的意见和建议, 2021年
11月18日.

Committee of the Thirteenth National People's Congress.42
- Standing Committee of the National People's Congress Opinions and Suggestions on the SPC
Report Implementation Report of the Decision of the Standing Committee of the National
People's Congress on Several Issues Concerning Litigation Procedures in Patent and Other
Intellectual Property Cases of 27 February 2022.43
- Standing Committee 2022 Work Report to National People's Congress.44
- Wuhan Intermediate People's Court of Hubei Province Civil ruling of 23 September 2020, in
case between Xiaomi and InterDigital (2020) E 01 Zhi Min Chu No.169 Zhi yi - putting in
place an anti-suit injunction.45
- Wuhan Intermediate People 's Court Civil ruling of 04 December 2020, in case between
Xiaomi and InterDigital (2020) E 01 Zhi Min Chu No.169 Zhi er - reviewing and maintaining
the Decision of 23 September 2020 to put in place an anti-suit injunction.46
- Shenzhen Intermediate People's Court of Guangdong Province Civil ruling of 28 September
2020, in case between ZTE and Conversant (2018) Yue 03 Min Chu No. 335 Zhi yi - putting
in place an anti-suit injunction.47
- Shenzhen Intermediate People 's Court of Guangdong Province Civil ruling of 16 October
2020, in case between OPPO and Sharp (2020) Yue 03 Minchu No. 689 Zhi yi - putting in
place an anti-suit injunction.48
- Wuhan Intermediate People's Court of Hubei Province Civil ruling of 25 December 2020, in
case between Samsung and Ericsson (2020) E 01 Zhi Min Chu No. 743 - putting in place an
anti-suit injunction.49
- Wuhan Intermediate People's Court of Hubei Province Civil ruling of 10 March 2021, in case
between Samsung and Ericsson, (2020) E 01 Zhi Min Chu No. 743, Zhi yi - reviewing and
maintaining the Decision of 25 December 2020 to put in place an anti-suit injunction.50
- Guangdong Province High People's Court, Top ten Intellectual Property Trial Cases in
Guangdong Province in 2020.51
- Guangdong Province China Communist Party Political and Legal Committee notice of 22 April
2021, on Guangdong Province High People's Court publication of Top ten intellectual property
cases in Guangdong Province in 2020.52

42 最高人民法院关于《全国人民代表大会常务委员会关于专利等知识产权案件诉讼程序若干问题的决定》实施情况的报
告, 2022年2月27日在第十三届全国人民代表大会常务委员会第三十三次会议上.
43 十三届全国人大常委会,第三十三次会,对《全国人民代表大会常务委员会关于专利等知识产权案件诉讼程序若干问题
的决定》实施情况报告的意见和建议, 2022年02月27日.
44 Published in English on the State Council Website
http://english.www.gov.cn/news/topnews/202203/14/content_WS622ee462c6d09c94e48a69f7.html
45 湖北省武汉市中级人民法院,小米与交互数字案（2020）鄂01知民初169号之一裁定书.
46 湖北省武汉市中级人民法院, 小米与交互数字案（2020）鄂01知民初169号之二裁定书.
47 广东省深圳市中级人民法院，中兴与康文森案（2018）粤03民初335号之一民事裁定书.
48 广东省深圳市中级人民法院, OPPO与夏普案（2020）粤03民初689号之一民事裁定书.
49 湖北省武汉市中级人民法院，三星与爱立信案（2020）鄂01 知民初743 号裁定书.
50 湖北省武汉市中级人民法院, 三星与爱立信案（2020）鄂01知民初743号之一裁定书.
51 湖北省高级人民法院，2020年度广东省知识产权审判十大案件.
52 中共广东省委政法委员会, 2020年度广东省知识产权审判十大案件.

- Hubei Province High People's Court's annual report on 2020, published in April 2021.53
- Hubei Province High People's Court Work Report on 2021: Interpretation of Typical Cases II,
published 22 January 2022.54
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 implementing measures.
1.3. Legal basis for the complaint in respect of China's measures
The measures described are 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 having 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 licensing contracts.
- Article 41.1, second sentence, of the TRIPS Agreement, be cause 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 legitimate 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 Agreement, including expeditious remedies
to prevent infringements and remedies, w hich 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. The Chinese courts should have
satisfied themselves with a sufficient degree of certainty that the applicant's right was being
infringed or that such infringement was imminent. Furthermore, the security or equivalent
assurance that was required from the applicant by the Chinese courts was not sufficient to
protect the defendant and to prevent abuse.
- 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 Protocol on the Accession of the People's Republic of China, as China,
through the issuance by Chinese courts of anti-suit injunctions in the abovementioned patent
litigation cases, by favouring the applicant in assessing and setting the conditions for the
anti-suit injunctions in tho se cases, and by imposing penalties on a daily basis, has not
applied and administered its laws, regulations and other measures in a uniform, impartial
and reasonable manner, in particular Article 103 and 188 of the Civil Procedure Law of the
People's Republic of China and the 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, and Article 184 of the Interpretation of the Supreme People 's Court on
the Application of the Civil Procedure Law.

53 湖北省高级人民法院，二〇二一年四月, 湖北法院知识产权司法保护状况及十大典型案例(2020年).
54 湖北省高级人民法院工作报告 典型案例事例释读二.

2. China's failure to publish final judicial decisions of general application pertaining
to the subject matter of the TRIPS Agreement
2.1. Description of the measures
China has failed to publish at least t hree decisions that were mentioned in official Chinese
government publications and referenced as guiding materials.
In a report presenting the top ten, typical IP cases of 2020 55 the SPC included the Shenzhen
Intermediate People's Court Decision putting i n place an anti-suit injunction in the case of OPPO v
Sharp. The Guangdong High Court in its report on the top ten cases in 2020 included the Shenzhen
ZTE v Conversant decision as a " typical case".56 The Guangdong China Communist Party Political
and Legal Committee also published the above Guangdong Province High People 's Court report on
the top ten cases in 2020 remarking that this showed Guangdong's leading role in building
intellectual property protection.57 The Hubei Province High People 's Court's annual report on 2020
activities included the Wuhan Intermediate People 's Court decisions in Xiaomi v InterDigital as a
"typical case".58 This included the decision of 16 October 2020 putting in place an anti-suit injunction,
as well as the re-consideration decision of 4 December 2020 that rejected the appeal and maintained
the anti -suit injunction. In 2022 the Hubei Province High People 's Court again listed the above
decisions by Wuhan Intermediate People 's Court in Xiaomi v Interdigital as a typical case
representing "a useful practice for China to use anti-suit injunctions in cross-border civil lawsuits to
maintain its own jurisdiction ".59 China's reply to the European Union TRIPS information request 60
also notes these cases "provide references for judicial practices". The decisions in these three cases
appear not to have been published. For example, they cannot be found online on China 's official
website for judgements, which the European Union understands to be the official medium for
publication.61
2.2. Legal basis for the claim
The elements described above are 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 judicial 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
regulations relating to patents. 62 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 gover nment publications and
referenced as guiding materials. The European Union explicitly requested China to provide the text
of all decisions taken so far in the following cases:

55 Published on 22 April 2021. 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.
56 湖北省高级人民法院，2020年度广东省知识产权审判十大案件.
57 中共广东省委政法委员会, 22 April 2022, 2020年度广东省知识产权审判十大案件.
58 湖北省高级人民法院，二〇二一年四月 (April 2021) 湖北法院知识产权司法保护状况及十大典型案例 (2020年).
59 The Work Report of the Hubei Province High People's Court: Interpretation of Typical Cases II,
reported on 21-01-22. 湖北省高级人民法院，二〇二一年四月 (April 2022) 湖北法院知识产权司法保护状况及十大典型案
例 (2020年).
60 Communication IP/C/W/683.
61 https://wenshu.court.gov.cn/
62 Communication IP/C/W/682.

1. Shenzhen Intermediate People's Court of Guangdong Province decisions in OPPO v Sharp;63
2. Wuhan Intermediate People's Court of Hubei Province decisions in Xiaomi v InterDigital;64
3. Wuhan Intermediate People's Court of Hubei Province decisions in Samsung v Ericsson.65
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.66
3.2. Legal basis for the claim
The elements described above are 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 measu res maintained by China relating to the protection and enforcement of intellectual
property rights, China's failure to publish final judicial decisions of general application 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.
The European Union asks that this request for the establishment of a panel be placed on the agenda
for the meeting of the Dispute Settlement Body to be held on 20 December 2022.