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Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.
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