A Rational Thinking on the Refusal to License Intellectual Property under China's Antitrust Legal Framework

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com)and Ms. Song Ying(songying@anjielaw.com) at AnJie Law Firm

Introduction 

This article will address the perplexing issue of refusal to license a patent or copyright to other undertakings conducted by intellectual property proprietors under China’s antitrust legal framework. The issue of refusal to license is at the interface of Intellectual Property Rights (IPRs) and antitrust law. It argues from theoretical perspective that refusal to license is a right inherent in patent rights or copyright, and that compulsory license based on antitrust law should only be ordered in exceptional circumstances. It further illustrates the legislations applicable in China and how they should be applied to disputes regarding refusal to license. We will further examine a high-profile antitrust case related to license of Standard Essential Patents (SEPs), namely, the Huawei v. IDC case, which is seen as the model case dealing with IP antitrust matters. In the final analysis the author shares caveats for assessing issues regarding refusal to license under China’s antitrust legal framework.

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Private Antitrust Enforcement in China

Authored by Dr. Hao Zhan (zhanhao@anjielaw.com) at Anjie Law Firm and Mr. Wei(wtan@compasslexecon.com) at Compass Lexecon 

Introduction 

Recent years have witnessed a rapid increase in private antitrust litigations in China. By the end of May 2014, Chinese courts had already accepted 188 cases, and concluded 172 cases, while the Chinese courts accepted 71 cases, concluded 69 cases in 2013 and accepted 30 cases in 2012. In addition, the private litigation cases have become more diversified and have included more complicated issues such as two-sided market, standard essential patent, resale price maintenance, refusal to deal and essential facilities. Chinese courts, including the Supreme People’s Court (“SPC”), have issued lengthy opinions with remarkably sophisticated legal and economic analysis, demonstrating a level of confidence and openness unseen in Chinese judicial system. 
 

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Private Antitrust Enforcement in China

Authored by Dr. Hao Zhan (zhanhao@anjielaw.com) at Anjie Law Firm and Mr. Wei(wtan@compasslexecon.com) at Compass Lexecon 

Introduction 

Recent years have witnessed a rapid increase in private antitrust litigations in China. By the end of May 2014, Chinese courts had already accepted 188 cases, and concluded 172 cases, while the Chinese courts accepted 71 cases, concluded 69 cases in 2013 and accepted 30 cases in 2012. In addition, the private litigation cases have become more diversified and have included more complicated issues such as two-sided market, standard essential patent, resale price maintenance, refusal to deal and essential facilities. Chinese courts, including the Supreme People’s Court (“SPC”), have issued lengthy opinions with remarkably sophisticated legal and economic analysis, demonstrating a level of confidence and openness unseen in Chinese judicial system. 
 

Reading more...

Private Antitrust Enforcement in China

Authored by Dr. Hao Zhan (zhanhao@anjielaw.com) at Anjie Law Firm and Mr. Wei(wtan@compasslexecon.com) at Compass Lexecon 

Introduction 

Recent years have witnessed a rapid increase in private antitrust litigations in China. By the end of May 2014, Chinese courts had already accepted 188 cases, and concluded 172 cases, while the Chinese courts accepted 71 cases, concluded 69 cases in 2013 and accepted 30 cases in 2012. In addition, the private litigation cases have become more diversified and have included more complicated issues such as two-sided market, standard essential patent, resale price maintenance, refusal to deal and essential facilities. Chinese courts, including the Supreme People’s Court (“SPC”), have issued lengthy opinions with remarkably sophisticated legal and economic analysis, demonstrating a level of confidence and openness unseen in Chinese judicial system. 
 

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What In-House Counsels Should Know About China's Anti-Monopoly Law in the Intellectual Property Sector

Authored by Mr. He Jing (hejing@anjielaw.com) at Anjie Law Firm

Introduction 

The IP-related antitrust enforcement in China has been a focal point among the industries and the international antitrust legal community for the last couple of years.The Qualcomm investigation by the National Development and Reform Commission (“NDRC”) is symbolic of what a large licensing company may encounter in China.  
 

This brief will highlight the key events and the most relevant legal basis in the IPrelated antitrust fields in China.  Some of our readers may be surprised to realize the breadth and depth of the legal and business issues that have been addressed by the Chinese courts.Standards-related IP policies, FRAND royalty rates, refusal to license, patent pools, and injunction relief for standard essential patents are among the issues that have been heatedly debated among policy makers, judges, practitioners and industries.Some Chinese court cases are arguably among the very early decisions worldwide.The future enforcement activities and outcome of private antitrust lawsuits in China may likely continue impacting the trends.  

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Mercedes-Benz Fined for Price Fixing: Auto Industry at Stake

Authored by Dr.  Zhan Hao (zhanhao@anjielaw.com) and Moon Wang (wanglingling@anjielaw.com) at Anjie Law Firm

Event

On 23 April, 2015, the Jiangsu Price Bureau, which is the provincial branch of the NDRC, announced the punishment on its website and stated that it had imposed a fine of CNY 350 million (USD 56.49 million) on German premium car maker Mercedes-Benz, along with a combined CNY 7.87 million (USD 1.27 million) fine on its dealers. The fine came as a result of Mercedes-Benz reaching and implementing resale price maintenance (“RPM”) agreements to fix the minimum prices of Class E and Class S cars, as well as certain auto parts. The announcement (“announcement”) was published without much detail of relevant facts, the reasons for the fine calculations, or definitions of the relevant markets.  
 
Later on 22 May, 2015, the Jiangsu Price Bureau published a full administrative penalty decision imposed against Mercedes-Benz and several of its dealers in Jiangsu province for the price monopoly. The punishment decision was dated 20 April, 2015 and shed light on the facts and reasons behind the penalty decision. 
 

Brief Comments on China's First Anti-Monopoly Regulation in the IP Field

 Authored by Michael Gu (michaelgu@anjielaw.com) at AnJie Law Firm

On 7 April 2015, State Administration for Industry and Commerce of the People’s Republic of China (SAIC) published China’s first anti-monopoly regulation specifically aimed at the abuse of intellectual property rights (IP), namely the Provisions on the Prohibition of Abuse of Intellectual Property Rights for the Purpose of Eliminating or Restricting Competition (the Provisions) which will become effective on 1 August 2015. The drafting of the Measures can be traced back to 2009, when the SAIC established a special task force to carry out the research and drafting of the Guidelines on the Anti-monopoly Enforcement in the Intellectual Property Rights field (the Consultation Draft)(the Guidelines). Based on the draft Guidelines, the SAIC issued the draft Provisions for public consultation (the Consultation Draft) in June 2014.The Official promulgation of the Provisions marks a giant leap for the SAIC in terms of anti-monopoly legislation in the IP field.

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China's Patent Office Inviting Public Comments on New Amendments of the Patent Law

 Authored by Mr He Jing (hejing@anjielaw.comand Mr Li Binxin (libinxin@anjielaw.comat Anjie Law Firm

The State Intellectual Property Office (“SIPO”) is reviving its effort to amend the patent law.  A new version of the proposed amendment was released for public comments with a deadline of the end of April 2014.  
 
The earlier draft as released in 2013 attracted some criticism because of the administrative enforcement powers related to patent infringement cases. People were worried about the creation of a separate patent adjudication system.  The new version still retains the administrative enforcement powers and also addresses delicate issues such as standard essential patents. Predictably, the new draft will lead to new rounds of heated debates.  
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China's Patent Office Inviting Public Comments on New Amendments of the Patent Law

 Authored by He Jing (heijing@anjielaw.comand Ms. Lyu Pei(lvpei@anjielaw.comat Anjie Law Firm

The State Intellectual Property Office (“SIPO”) is reviving its effort to amend the patent law.  A new version of the proposed amendment was released for public comments with a deadline of the end of April 2014.  

The earlier draft as released in 2013 attracted some criticism because of the administrative enforcement powers related to patent infringement cases. People were worried about the creation of a separate patent adjudication system.  The new version still retains the administrative enforcement powers and also addresses delicate issues such as standard essential patents. Predictably, the new draft will lead to new rounds of heated debates.

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Chinese Judge Gives Special Consideration to Internet in Wechat Trademark Decision

Authored by He Jing (heijing@anjielaw.comand Ms. Lyu Pei(lvpei@anjielaw.comat Anjie Law Firm

A recent Beijing IP Court decision on “weixin” (the Chinese name of WeChat) trademark has attracted wide discussion and debate in China. On March 11, the Beijing IP Court issued its first instance judgment on the dispute, affirming Trademark Review and Adjudication Board (TRAB)’s refusal to register the “weixin” trademark applied by Trunkbow Asia Pacific (Shandong) Co., Ltd. (“Trunkbow”). The court cited Art. 10.1.8 to rule that Trunkbow’s “weixin” mark, which has no bad faith intent, would have such “unhealthy influence” or “ill effect” as to the existing and stable market order and potentially lead to false recognition among the public.  What is particularly noted by the trademark community is that the court believes that allowing the earlier-filed mark to be registered would harm the public interest.  

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