US looking at statutory ASI protection for SEP cases

If you have 10 minutes today you could spend it reading this interesting article by Professor Jorge Contreras on the 'Defending American Courts Act' (DACA). What this amounts to, effectively, is a semi-automatic anti-antisuit injunction covering patent infringement proceedings in all US courts. There are no prizes for guessing the genesis of this particular approach, with the interplay between SEPs and antisuit relief being very much in the spotlight (not least following the EU's recent referral to the WTO of Chinese ASI practices).

The penalties are not particularly severe (prohibition of a challenge to an asserted patent in the PTAB and any infringement found will be presumed to be willful for the purpose of enhancing damages); however, given the common use of PTAB proceedings in FRAND disputes perhaps there will be some effect. Otherwise, the bill is rather lacking in detail according to Prof. Contreras (this may be remedied in committee).

The most interesting angle noted by Prof. Contreras is his note on the origin of antisuit relief: it has been a tool in the toolkit of both the US and English courts for hundreds of years. The use by PRC courts of the tool is new, but one can hardly say it is a Chinese development. Those antisuit injunctions that have been issued out of the courts of the PRC have also varied slightly, from blanket attempts to prevent patent infringement lawsuits globally, to limits purely on seeking injunctive relief on patents in a portfolio subject to valuation proceedings. The latter, narrower form, seems rather close to a court dealing with a contractual licence dispute preventing enforcement of the underlying IPR in a foreign court, which is something that historically has been more accepted, but really doesn't seem to be any different. Where there is an exclusive jurisdiction clause the situation is more clear cut, but what about where there isn't - would an English court not seek to prevent assertion of an IPR that was, ultimately, licensed and paid for (subject to the English proceedings determining the payment)?

Does it come down to this perhaps: If I undertake to enter into a licence determined by a court, and that licence will cover my present ongoing infringement of a foreign court, is it unfair for the other party to be able to injunct me on that foreign patent in the interim? Answers on a postcard.