This month we highlight two scholarly articles related to the Federal Circuit.
- It’s Anti-Suit Injunctions All The Way Down – The Strange New Realities of International Litigation Over Standards-Essential Patents
- The TRIPS Agreement Article 73 Security Exceptions and the COVID-19 Pandemic
Here are the details.
It’s Anti-Suit Injunctions All The Way Down – The Strange New Realities of International Litigation Over Standards-Essential Patents
In this article, Professor Jorge Contreras gives context to the increasing worldwide litigation surrounding standard-essential patents. Specifically, he explores how anti-suit injunctions (ASI)–which allows a court in one jurisdiction to prevent a party from pursuing litigation in another jurisdiction–have become an important aspect of standard-essential patent litigation. He also discusses the anti-anti suit injunction (AASI) which may be obtained to restrict a party from seeking an ASI in another jurisdiction. The parties have recently started seeking anti-anti-anti-suit injunctions (AAASI). Contreras contends that “[i]f there is no theoretical limit to the procedural machinations to which parties can go in such disputes, it may, indeed, be injunctions ‘all the way down.'”
Professor Frederick Abbott’s article addresses how the COVID-19 pandemic has caused governments around the globe to contemplate overriding patents and other intellectual property rights “to facilitate production and distribution of vaccines, treatments, diagnostics and medical devices.” He discusses whether the pandemic is an emergency in international relations sufficient to invoke the security exceptions of the TRIPS Agreement. Abbott contends that “the pandemic constitutes an emergency in international relations within the meaning of Article 73(b)(iii) and that this provision allows Governments to take actions necessary to protect their essential security interests.”