On October 19, 2015, the Ministry of Commerce ("MOFCOM") announced the first conditionally approved merger review case in 2015, namely the case of Nokia’s acquisition of Alcatel-Lucent’s equities. It is the second time that Nokia has become the protagonist in a MOFCOM merger review case due to mobile communications standard essential patents ("SEPs") 18 months after MOFCOM conditionally approved the case of Microsoft’s acquisition of Nokia’s device and service divisions in April 2014.
In early April 2014, when reviewing the case of Microsoft’s acquisition of Nokia’s device and service divisions, MOFCOM thought this concentration might have adverse impact of excluding or restricting competition on China’s smart phone market after considering that Microsoft owns a number of important patents in the field of smart phones and Nokia holds thousands of SEPs in the field of communication technologies. After several rounds of negotiations, MOFCOM finally accepted the commitments with remedy plans respectively proposed by Microsoft and Nokia, and thereby conditionally approved this concentration. Specifically, Nokia, as the seller, made relevant commitments to strict compliance with the FRAND (fair, reasonable and non-discriminatory) principle in respect of related SEPs. In the recent case of acquisition of Alcatel-Lucent’s equities, Nokia, as the acquirer, has made more stringent commitments to a larger extent in respect of its telecommunications SEPs, including telecommunications SEPs owned by Alcatel-Lucent.