Conference Agenda

The article argues that the growing use of national patent infringement injunctions to coerce acceptance of worldwide licences, especially in standard‑essential patent (SEP) disputes, conflicts with the territorial structure of the international patent system embedded in the Paris Convention and the TRIPS Agreement. It reconstructs the historical and doctrinal foundations of patent territoriality, showing how the Paris Convention’s “independence of patents” and TRIPS’ incorporation of that principle were designed to preserve national sovereignty over patent standards and enforcement, subject only to baseline multilateral obligations. Against this backdrop, it explains how TRIPS Article 1.1, Articles 7–8, and Part III presuppose national, not extraterritorial, adjudication of infringement, validity, remedies, and valuation.​

The paper then shows how courts, for example in Germany and the UK, etc, have used domestic injunctions in SEP cases to impose “global rate‑setting injunctions,” conditioning national market access on acceptance of worldwide licences on court‑determined terms, with refusal treated as “unwillingness” and triggering exclusionary relief. These practices presuppose conclusions about foreign validity, infringement, defences, and royalty methodology, allowing one state’s courts to shape the economic content of foreign patents, including U.S. rights, thereby undermining TRIPS’ independence principle, constraining other members’ Article 8 policy space, and risking conversion of territorially‑limited rights into de facto transnational monopolies. A central analytical move is the distinction between contract and infringement: the article accepts worldwide FRAND determinations in breach‑of‑contract actions based on voluntary FRAND undertakings, but criticises the use of infringement‑based injunctions to force global licences as an illegitimate projection of territorially‑bounded rights abroad.​

The article situates these developments within evolving WTO and competition‑law practice, focusing on the 2025 WTO Arbitrators’ award in China – Enforcement of Intellectual Property Rights (DS611) and Brazil’s CADE Ericsson/Lenovo decision. DS611 is read as articulating an “anti‑frustration” rule: members may not adopt measures, such as expansive anti‑suit injunctions, that frustrate the effective exercise of IP rights in other members’ territories, a logic the authors extend to compelled global rate‑setting via domestic injunctions. CADE’s reliance on territoriality and TRIPS Article 40 to question mandatory global licences and to treat tying national access to foreign patent bundles as potentially anti‑competitive further supports this critique. Normatively, the article contends that using national injunctions as levers for global licensing distorts patent valuation, exacerbates “little‑to‑big” problems in multi‑component products, encourages rent‑seeking, and reallocates R&D returns away from domestic priorities, with particular risks for U.S. firms targeted abroad and a largely passive U.S. government response.​

Finally, the article outlines pathways for re‑anchoring the system in TRIPS‑compatible territoriality. It argues that domestic courts in both monist and dualist systems should construe their remedial powers in conformity with international obligations, allowing defendants to invoke TRIPS non‑compliance as a defence to injunctions conditioned on global licences. It also canvasses the potential of investor–state dispute settlement (ISDS) as a supplementary enforcement mechanism, enabling foreign investors harmed by TRIPS‑incompatible, extraterritorial uses of injunctions to claim damages for measures that unjustifiably diminish the value of their investments by disrupting the territorial allocation of patent rights. The article concludes that renewed engagement by WTO members, competition authorities, and national courts is essential to prevent “borderless patents” emerging through remedial backdoors and to restore the balance between international minimum standards and domestic autonomy at the core of the global patent regime.