Samsung had an interesting Christmas present for Ericsson: an ex-parte anti-suit injunction from Wuhan, China on Christmas morning. Ericsson replied yesterday with an Anti-Anti Suit injunction in the form of a Temporary Restraining Order from Marshall, Texas. A full hearing is scheduled for 7 January.
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  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