In June 2016, China’s State Council issued its Opinions of the State Council on Establishing a Fair Competition Review System During the Development of Market-oriented Review System (“Opinions”). The fair competition review system (“FCRS”) that the Opinions contemplate is designed to protect against the potential abuse of administrative power by Chinese government agencies that could result in anti-competitive effects. In other words, the FCRS is supposed to constrain government activities from unduly influencing market competition, consistent with the prohibition that China’s Anti-Monopoly Law places on such conduct.
Shelley's related IP experience includes the following:
- Patent invalidation proceedings, anti-counterfeiting, anti-piracy efforts and patent and trademark enforcement litigation in China.
- Prosecution of patent and trademark, including application preparation, office actions/oppositions procedures and reexamination procedures.
- Enforcement and technology transfer/licensing arrangements for substantial patent and trademark portfolios for companies doing business in China.
- Advising on IP protection strategies, R&D related IP issues and matters in relation to export and import control of technology.
- Assisting Chinese companies in Section 337 U.S. International Trade Commission investigation, patent infringement litigations and product liability litigations in the U.S.
- IP due diligence and portfolio counseling.
- Various Chinese companies (including state-owned companies) as defendants in a number of commercial litigation and product liability litigation cases in the U.S.
- A leading solar thermal technology company based in Israel in negotiating a technology licensing contract with a large state-owned enterprise, and successfully established a joint venture in China.
- An individual as defendant in a U.S. case related to criminal misappropriation of trade secrets.
- A multinational U.S. software company in two patent infringement lawsuits before a Beijing court and the related patent invalidation case at the Chinese Patent Reexamination Board (PRB), which led to a favorable PRB decision for the client and withdrawal of the litigation cases by the plaintiff (2012).
- A leading U.S. positioning technology company in its import and export control issues.
- A leading Taiwan touch screen company in defending three times of patent invalidation proceedings at the PRB, which lead to a favorable PRB decision (2010) for the first case, withdrawal of the case by the petitioner (2011) for the second case, and a favorable PRB decision for the third case (2012).
- A leading Taiwan office supplies company in a patent infringement lawsuit in Beijing and in the patent invalidation procedures at the PRB, which led to a favorable settlement. (2011)
- A French broadcasting related technology company in a standard patent related program in China.
- A U.S. medical device company in technology agreement for China related transactions.
- A U.S. multinational semiconductor company in preparing a patent litigation and collecting evidence in China.
- Leading automobile component supply companies in IP due diligence, especially patent infringement analysis.
- A leading U.S. entertainment company in structuring operation in China for producing and telecasting TV program.
- A leading U.S. LED chip company in structuring IP license and assignment agreements in establishing a Chinese joint venture company.
- A leading U.S. reverse engineering company in understanding Chinese legal environment for reverse engineering business.
- A leading U.S. flash memory cards company in understanding Chinese regulations on products containing encryption technologies.
- A leading Israeli RFID card manufacture company in filing patent invalidation proceedings, defending patent infringement proceedings and defending customs enforcement proceedings, which led to a final landmark global settlement agreement with the company’s major competitor.
- A U.S. software engineering company in understanding technology import and export control issues in research and development activities in China.
- A leading U.S. e-commerce company in understanding issues including preliminary injunction and internet related infringement jurisdiction, cross-border technology license and assignment, employee inventor compensation and IP ownership.
- A multinational Swiss company providing power and automation technologies in trademark and domain names disputes in China, as well as in patent protection strategies.
- A leading Swiss company in the field of electrical transportation engineering in preparation for patent invalidation proceedings, evidence collection and evaluation, and strategy issues.
- A U.S. pharmaceutical company in understanding administrative protection of pharmaceutical products and patent infringement in China.
- A leading Taiwan company in the field of semiconductor manufacture in a Chinese litigation and a relevant U.S. litigation, involving issues of breach of contract, patent infringement, trade secret misappropriation and unfair competition.
- A group of Chinese companies in the laminated flooring industry in a U.S. ITC Section 337 investigation case.
- A leading Australia company in the mining and minerals processing industries in IP enforcement involving issues of breach of contract, unfair competition, patent, trademark and copyright infringement in China.
- A leading U.S. consumer product manufacturer on enforcement of IP rights in China, involving administrative proceedings before the Chinese IP office, patent infringement litigation proceedings before court, administrative proceedings before Customs and invalidation proceedings before the PRB.
Posts by: Shelley Zhang
Although China and Japan have very different histories regarding their antitrust laws, antitrust enforcement officials from the two countries have recently taken steps to open a formal dialogue. This is a welcome development for Chinese and Japanese companies, as well as for foreign companies that do business in China and Japan, and it continues the trend of increased communication, cooperation and coordination among national enforcement agencies. There remains an open question, however, as to how convergence among Asian antitrust enforcement agencies will affect possible convergence with agencies in the United States, the European Union and the rest of the world.
Recognizing concern that the Chinese government intervenes excessively into markets and private economic activities, the China State Council recently released opinions directing the implementation of a fair competition review system (“FCRS”), which is intended to moderate administrative authorities’ issuance of regulations and minimize the government’s interference in China’s economy. Although the CRS has been hailed as “a key step to establish the fundamental status of competition policies,” its success will depend on how it is implemented.
On June 1, 2016, the Opinions of the State Council on Establishing a Fair Competition Review System During the Development of Market-Oriented Systems (“Opinions”) were promulgated and became effective. The Opinions note that enforcement of current laws sometimes entails “local protectionism, regional blockade, industry barriers, business monopoly, granting preferential policies in violation of the law or illegally prejudicing the interests of market players, and other phenomena contrary to the efforts of building a unified national market and promoting fair competition.” These so-called “administrative monopolies,” which often are at issue in cases investigated under the Anti-Monopoly Law (“AML”), are at cross purposes to the AML. In an effort to reduce or eliminate obstacles to economic development, the Opinions call for limiting the government authorities’ administrative powers, establishing the FCRS, preventing new policies and measures that exclude competition, and gradually revising and ultimately abolishing existing provisions that impede fair competition.