Concurrences Review Event on Multinationals Deals in a World of Non-Convergence

Concurrences Review, in partnership with George Washington University Law School, will hold the 4th edition of their annual joint conference “120 Merger Regimes: Multinationals Deals in a World of Non-Convergence: US, EU, Brazil, China... on Monday, September 19, from 14:00 to 18:30, at George Washington University School of Law, 2000 H Street, NW, Washington, DC. 

Speakers include:
  • William E. Kovoacic, Professor, George Washington University Law School
  • Sir Philip Lowe, Senior Advisor, FTI Consulting
  • George Rozanski, Partner, Bates White
  • Michael Keeley, Partner, Axinn, Veltrop & Harkrider
  • Rosie Lipscomb, Senior Competition Counsel, Google
  • Yong Huang, Director, Competition Law Center, Uni. of Int'l Business & Econ
  • John Harkrider, Partner, Axinn, Veltrop & Harkrider
  • Aviv Nevo, Senior Advisor, Cornerstone Research
  • Carles Esteva-Mosso, Deputy Director General, DG COMP
  • Elaine Ewing, Partner, Cleary Gottlieb Steen & Hamilton
  • Michael Ray, Executive Vice President, Western Digital Corporation
  • George Cary, Partner, Cleary Gottlieb Steen & Hamilton
  • Jonathan Orszag, Senior Managing Director, Compass Lexecon
  • Ian Simmons, Partner, O’Melveny & Myers
  • Sharis Pozen, VP, Global Competition and Antitrust, General Electric
  • Richard Parker, Partner, O'Melveny & Myers
  • Randolph W. Tritell, Director, Office of International Affairs, US Federal Trade Commission
There will be three panels:
  • Lack of Consistency: Navigating an Unharmonized World of Merger Regimes
  • A Call for Harmonization: Towards Regional Regulators or Comity?
  • Does the Bureaucratic Model Work? Advocacy Before the Agencies and the Courts
You can find the detailed program on the dedicated website: multinational-mergers.eventbrite.com
 

Supreme Court Reforms Patent Lawsuit Rules

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

The Supreme Court of China released a new set of judicial interpretations governing the patent infringement lawsuits in March, which has entered into force on April 1 2016. The new judicial interpretation is intended to further enhance and clarify the way patent infringement lawsuits are done in China. Before going into the details, it may helpful to note that the Supreme Court is taking active steps to ensure the courts are playing dominant roles in handling patent disputes, as the State Intellectual Property Office is openly calling for more powers to enforce patents through administrative routes. The dual-track enforcement system in China, which was never given too much attention the past, is somehow a topic in today’s China patent world. Some aspects of the new rules clearly give the courts a bigger say in driving the patent litigation proceedings. 

The new rules made by the Supreme Court addresses a wide scope of issues, such as claim construction, impact of validity proceeding, design patent protection, determination of damages, standard essential patents.

The Magic of China IP Misuse Guidelines

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

The drafting process of various China IP misuse guidelines, circulated by National Development and Reform Commission (NDRC) and State Administration for Industry and Commerce (SAIC), have taken up lots of attention in recent months.  The multiple editions of the drafts, which are all made public to local and global legal community, attracted rounds of discussions and submissions among professional groups and government agencies.  At the same time, the access to the other two draft IP misuse guidelines, being drafted by State Intellectual Property Office (SIPO) and Ministry of Commerce (MOFCOM), is restrictive.  Now, it is believed that all the work drafts of the IP Misuse Guidelines have been sent, if not, will soon be sent to the State Council Anti-monopoly Commission for review and consolidation.  We may anticipate something for public comments later this year.  

The intensive drafting work has contrasted with somewhat less aggressive antitrust enforcement activities involving IP in China.  People may wonder whether China intends to make some adjustment through such rule-making process, or this is simply silence before next storm.  

This article is intended to examine the motivations, the history and current status of the China IP Misuse Guidelines that are being made by multiple regulatory authorities.  In particular, we will compare the two key drafts that are drafted by NDRC and SAIC in order to reveal something that signals what may come into being in the future.  One interesting finding is that SAIC somehow regains attention and comes out as an equally important force, in formulating the IP misuse guidelines.  All the attention that were given to NDRC, partly due to its enforcement decisions, may prove to be not so justifiable.    

Authority Scrutiny of SEP and FRAND Issues in China

Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and Mr. He Jing (hejing@anjielaw.com) at AnJie Law Firm

Antitrust enforcement relating to standard essential patents (SEPs) and fair, reasonable and non-discriminatory (FRAND) licensing in China has been a focal point for industry and the international legal community for the past few years. In this regard, the National Development and Reform Commission’s (NDRC) investigation into Qualcomm Corporation was typical of what a licensing company may encounter in China. This report highlights the relevant legal basis for SEP and FRAND-related antitrust enforcement in China, as well as key developments. Standard related IP policies, FRAND royalty rates, refusal to license, patent pools and injunction relief for SEPs have been hotly debated among policy makers, judges, practitioners and industry players. Some Chinese court cases have arguably been among the earliest decisions worldwide in this field, and future enforcement activities and the outcome of private antitrust lawsuits in China will likely continue to affect global trends.

 
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Draft Amendment to Anti-Unfair Competition Law

 Authored by Mr. He Jing (hejing@anjielaw.com) and Ms. Dong Xue (dongxue@anjielaw.com) at Anjie Law Firm

The Draft Amendment to Anti-Unfair Competition Law (AUCL) has long been awaited and discussion on its proposed  revisions is now heating up. Drafted by the State Administration of Industry and Commerce (SAIC) and released by State Council for public opinion  until March  25 2016,  this Draft Amendment has substantially revised 30 of the 33 provisions and touched  on a wide range of issues, including commercial bribery, trade dress, trade secrets, antitrust, administrative enforcement and compensation thresholds.

AUCL has always been a crucial weapon for intellectual property rights owners to stop infringement and freeriding activities, and this Draft Amendment would also have material impact on IP enforcement. Historically, trade secret cases are among the most difficult battles to win, due to too high criminal thresholds, inconvenient transfer from administrative to criminal proceedings and insufficient safeguard measures for trade secrets disclosed in enforcement proceedings among various other reasons.
 

The Function and Regulation of Credit Insurance in China

    Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and Liang Bing (liangbing@anjielaw.com) at AnJie Law Firm

Since the issuance of Several Opinions of the State Council on Accelerating the Development of the Modern Insurance Service Industry on August 10, 2014, credit insurance has been increasingly applied in insurance practice. However, “credit insurance ” is different from “warranty” in Chinese Guarantee Law,and there is a heated discussion on the nature of a credit insurance.  

In the Chinese P2P or the other transactions, credit insurance is often used to protect creditors’ benefits. In this paper, we are going to discuss the points creditors need to be aware of.

 
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Extended Warranty, a Service Plan or an Insurance Product?

 Authored by Dr. Zhan Hao (zhanhao@anjielaw.com) and Wei Chuankai (weichuankai@anjielaw.com) at AnJie Law Firm

An extended warranty is a prolonged warranty offered to customers in addition to the standard warranty on a new item. It is provided for various products, such as automobile, electronic and electrical appliance in household and similar. It has been a popular dispute that whether an extended warranty is an insurance product for a long time.

According to Article 2 of the Insurance Law of the People’s Republic of China, “Insurance” is defined as: “The commercial insurance activities where an insurance applicant pays an insurance premium to an insurer under an insurance contract and the insurer undertakes to pay the insurance proceeds to compensate for the property loss caused by the occurrence of a potential incident specified in the insurance contract or pay the insurance proceeds when the insured dies, becomes disabled or sick or reaches a specified age, time limit or any other condition specified in the contract. ”

China Insurance Regulatory Commission (hereinafter referred to as “CIRC”) did not give more explanation on detailed elements of “Insurance”, but issued other regulations on the implied factors of “Insurance”, which indicates clues on distinction between extended warranty and insurance product. The distinctions between an extended warranty and an insurance product are as follows:

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Annual Review of Public Enforcement of China's Anti-Monopoly Law (2016)

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

I. OVERVIEW

In 2015, the Chinese market experienced rapid developments in anti-monopoly law enforcement. Further efforts also went into new guidelines and rules aimed at refining China's antitrust regime. Also, China's three anti-monopoly law enforcement agencies were very active in terms of the number of cases handled, the rate of fines imposed, and the varied grounds for investigations. In particular, high-profile antitrust cases have further profiled China as an emerging centre for antitrust enforcement. The Qualcomm case concluded by the National Development and Reform Commission (NDRC) set a new record for the highest antitrust penalty ever issued in China’s anti-monopoly enforcement history, and also is the first investigation concluded by Chinese antitrust agency against the abuse of standard-essential patents (SEPs). A pharmaceuticals company in Chongqing has become the first company penalized for refusing to deal in the antitrust enforcement history of China. 

On 7 April 2015, the State Administration for Industry and Commerce (SAIC) published China’s first anti-monopoly regulation specifically aimed at the abuse of intellectual property rights - the Provisions on the Prohibition of Abuse of Intellectual Property Rights for the Purpose of Eliminating or Restricting Competition - which became effective on 1 August 2015. The provisions fill the legislative gap in China’s anti-monopoly regulations governing the IP field and aim to balance the lawful rights and interests of IP rights holders and other interested parties, while also further promoting innovation and market competition. 

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Chinese Antitrust Agency Imposes Fines for Coinsurance

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

In December 2015, Chinese Antirust Agnecy, the Hubei Administration for Industry and Commerce (“Hubei AIC”), disclosed its punishment on 12 insurance companies for signing illegal coinsurance agreements. In this case, Chinese antitrust agency considered a coinsurance for Construction Project Personal Accident Insurance illegal. 12 insurance companies were fined CNY 4.69 million in total. It is not the first time that insurance companies and coinsurance targeted by China’s antitrust agencies. 

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Overview of Yingding v. Sinopec Case

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

Introduction

Yunnan Yingding Bio-energy Co., Ltd. (“Yingding”) is an abio-energy manufacturer. In the last years, Yingding claimed that Sinopec and the Yunnan branch of Sinopec's (“Sinopec Yunnan Branch”) trading company had abused their market dominant position by refusing to incorporate the biodiesel they produced from waste cooking oil into Sinopec's distribution system, without justifiable reasons. The lawsuit was filed with Kunming Intermediate People’s Court (“Kunming Court ”) in China’s Yunnan province.

In the first instance ruling, Kunming Intermediate People’s Court (“Kunming Court”) ruled against Sinopec, holding that the Yunnan branch of Sinopec's trading company was obligated to purchase and distribute the biofuel made by Yingding and abused its dominance in the sales market of refined oil by refusing to purchase the biofuel made by Yingding without justifiable reasons. 

In the second instance ruling, Yunnan High People’s Court (“Yunnan Court”) reversed the first instance ruling and remanded the case on account of unclear facts and procedural errors. Currently, the case is pending. 

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