The Wuhan Submarine surfaces at Christmas, to be met by a Texan TRO

In the second half of 2020, the standard operating handbook for FRAND negotiation acquired a new chapter: the “Wuhan Submarine”. Some time ago the Italian torpedo was the defensive tactic most discussed: a process of asking the slower Italian courts to rule on infringement of patents from faster European countries, thereby preventing an infringement action on those patents. In Germany, a party fearing suit might file, and periodically renew, “protective letters” to prevent an injunction in the German courts. Other implementers adopted pre-emptive strikes in the UK, seeking invalidation or a declarations of non-essentiality: Nokia used such a tactic against Interdigital and IPCom, and HTC deployed a similar approach against Nokia, also seeking expedition to get to trial in the UK before Germany. More recently, the West Coast of the US has become a good location for a first strike, with HTC, then Apple, and most recently Continental, using it against Nokia. But the downside of all such public pre-emptive actions is that they cause negotiations to come to a halt, and kick off a long period of expensive litigation before talks might resume.

Wuhan’s willingness to accept actions, and grant anti-suit injunctions (ASI) without notice and in secret gives it an edge over previous tactics: as a submarine jurisdiction, it remains hidden until needed. When the submarine surfaces, the torpedo has already struck.

Mark Cohen reported in yesterday’s China IPR [1] that the IP judiciary started to discuss ASI’s in mid-January of 2020. Chinese judges noted that their Civil Procedure rules (Article IX, Sec. 100…