FOREIGN AND INTERNATIONAL LAW
In Huawei Technologies Co, Ltd v Conversant Wireless Licensing SARL [2019] EWCA Civ 38, the English Court of Appeal (Floyd LJ, Patten and Flaux LJJ concurring) heard an appeal from a challenge to the jurisdiction of English courts to determine the validity of patents in a portfolio of rights from different countries. In that case, the respondent owned a suite of standard essential patents, including those granted by the United Kingdom and China. The challenge arose in the context of the respondent seeking leave to serve its originating process, which claimed infringement of its patents, on the appellant, which was situated in China. The appellant submitted the claim ought not be brought in England, but in China instead, as the site of the preponderance of the alleged infringement. The answer to the challenge involved an application of the English forum conveniens test; that is, which forum was the most natural or appropriate to hear the dispute.
Floyd LJ rejected expressly an approach that treated the suite of patents as giving rise to some “unity global right” that might be infringed more severely in one jurisdiction than some other (at [106]). To the contrary, the Court emphasised the necessity of considering the overall dispute between the parties (at [96]), and the characterisation of patent rights (and the remedies for their infringement) as peculiar to the jurisdictions which granted the monopoly. The critical passage of the reasons is at [103]-[104]:
“It is … not legitimate to characterise the claim as one for enforcement of a global portfolio right. No such right exists …
[It] seems to me that the forum conveniens question answers itself. The fact that the dispute concerns UK patents is a matter of substance and not of form. Resolution of the dispute will involve determining infringement, essentiality and validity of UK patents. A UK forum is clearly the most appropriate forum, indeed the only possible forum, for this dispute to be tried. The further evidence of Chinese law, if admitted, could not influence this outcome. Even taken at its highest it does not suggest that the Chinese court could inquire into the validity of UK patents.”