Shelley Zhang

Partner

Beijing


Read full biography at www.orrick.com
Shelley Zhang, a partner in Orrick’s Beijing office, is a member of the Intellectual Property Group. Her practice focuses on IP prosecution and enforcement. Shelley has extensive experience in patents, trademarks, domain names, copyrights and trade secrets.

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 investigations, patent infringement litigations and product liability litigations in the U.S. 
  • IP due diligence and portfolio counseling.

Posts by: Shelley Zhang

China’s Conditional Approval of Bayer’s Acquisition of Monsanto: Lessons for Future Merger Cases in China

On March 13, 2018, China’s Ministry of Commerce (“MOFCOM”)[1] announced its Conditional Approval following antitrust review of a concentration of undertakings relating to Bayer’s proposed merger with Monsanto (“Merger”) (Bayer and Monsanto are hereinafter collectively referred to as the “Parties”). This matter, plus three other mergers approved with restrictive conditions by MOFCOM or SAMR in 2018, suggests some trends in China’s approach to antitrust merger review, as discussed below.[2]

In the Bayer/Monsanto matter, the Parties filed a declaration on concentration of undertakings with MOFCOM on December 5, 2016. Afterwards, the Parties withdrew and refiled the declaration twice, and MOFCOM’s review period for each refiled declaration was extended once, with the last one extended to March 15, 2018, which indicates the complexity of the Merger and the antitrust review.

During the review process, MOFCOM raised the concern that the Merger would or might have the effect of eliminating and restricting competition in the following markets: (1) China’s non-selective herbicide market; (2) China’s vegetable seed market (long-day onion seeds, carrot seeds and large-fruit tomato seeds, etc.); (3) field crop traits (corn, soybean, cotton, and oilseed rape); and (4) digital agricultural markets.

According to Article 27 of the Anti-Monopoly Law, the Ministry of Commerce conducted an in-depth analysis of the impact of the Merger on market competition from the following aspects, among others: (i) the market concentration of the relevant market; (ii) the market share and the control of the market by the participating operators in the relevant market; (iii) the impact on market entry and technological progress; and (iv) the impact on consumers and other relevant operators. MOFCOM solicited opinions from relevant government departments, industry associations, downstream customers and industry experts, and held multiple symposiums to understand relevant market definitions, market participants, market structures, industry characteristics, etc. Based on its analysis, MOFCOM believed that the Merger would or might have the effect of eliminating or restricting competition in the four markets, as mentioned above.

MOFCOM then timely informed the Parties of its review opinions and conducted multiple rounds of negotiations with the Parties on how to reduce the adverse impact of the Merger on competition. For the restrictive conditions submitted by the Parties, MOFCOM, in accordance with the “Provisions of MOFCOM on Imposing Additional Restrictive Conditions on the Concentration of Business Operators (for Trial Implementation),” evaluated mainly the following aspects, among others: (i) the scope and effectiveness of divested business; (ii) the divested business’ continuity, competitiveness and marketability; and (iii) the effectiveness of conditions requiring actions to be taken. On March 13, 2018, after evaluation, MOFCOM decided to approve the Merger with additional restrictive conditions, requiring Bayer, Monsanto and the post-merger entity to fulfil the following obligations:

  1. Globally divesting (i) Bayer’s vegetable seed business, (ii) Bayer’s non-selective herbicide business (glyphosate business), and (iii) Bayer’s corn, soybean, cotton, and oilseed rape traits businesses. The above divestitures include divesting related facilities, personnel, intellectual properties (including patents, know-how and trademarks) and other tangible and intangible assets.
  2. Allowing all Chinese agricultural software application developers to connect their digital agricultural software applications to the digital agriculture platform(s) of Bayer, Monsanto and the post-merger entity in China, and allowing all Chinese users to register with and use the digital agricultural products or applications from Bayer, Monsanto and the post-merger entity, within five years from the date when Bayer’s, Monsanto’s and the post-merger entity’s commercialized digital agricultural products enter the Chinese market, and based on fair, reasonable and non-discriminatory terms.

This case, as well as the other three mergers approved with restrictive conditions by MOFCOM or SAMR in 2018, suggests the following trends in China’s antitrust review of mergers:

  •  Economic analysis and market research tools are more frequently being introduced for case analysis. In the Bayer/Monsanto Merger, MOFCOM frequently used the Herfindahl-Hirschman Index (“HHI”) to analyze market concentration issues, and MOFCOM also held hearings/seminars to discuss issues related to market definition, market structure and industry characteristics with industry experts.
  • Potential effects of excluding or limiting competition without proved market shares may also be considered in the antitrust review. In the Bayer/Monsanto Merger, as to the large fruit tomato seeds market, Monsanto’s market share was 10-20%, which was believed to be much larger than that of other competitors. Considering that Bayer was an important competitor in the market, MOFCOM believed that Bayer’s potential in the Chinese market had not yet been fully reflected in its own market share, and that the Merger might render the market less competitive. Thus, in addition to market shares, the Parties’ market power or potential for expansion will also be considered when determining whether or not a merger might exclude or limit the competition in the market.
  • The impact on technological progress will be assessed and the theory of damaging innovation is likely to be adopted. In the Bayer/Monsanto Merger, MOFCOM adopted a “damaging innovation” theory by positing that a merging party’s innovative level and research and development (R&D) ability should be considered in assessing its market position. After the merger, because there are fewer R&D competitors, the merging parties might have less incentive to innovate and they might reduce R&D investment and delay the release of new products to the market, consequently causing an adverse impact on innovation in the whole market. It seems likely that Chinese antitrust officials will continue to consider the technological factor and will apply the damaging innovation theory when necessary for reviewing complicated transactions.
  • Structural conditions and conditions requiring certain actions to be taken may be combined as remedies. Finally, in the Bayer/Monsanto Merger, MOFCOM imposed both structural conditions (requiring global divestiture of certain of Bayer’s businesses) as well as conditions requiring certain actions to be taken (requiring that the Parties make their platforms and digital agricultural products available to Chinese users). Similar combined remedies were imposed in two of the three other approved mergers in 2018. Again, it seems likely this trend will continue.

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[1] In April 2018, the anti-monopoly law enforcement agencies under the three ministries, i.e. the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce, were incorporated into the newly-formed State Administration for Market Regulation (“SAMR”) based on the State Administration for Industry and Commerce.

[2] See Announcement No. 31 [2018] of the Ministry of Commerce – Announcement on Anti-monopoly Review Decision concerning the Conditional Approval of Concentration of Undertakings in the Case of Acquisition of Equity Interests of Monsanto Company by Bayer Aktiengesellschaft Kwa Investment Co. [Effective], available at http://fldj.mofcom.gov.cn/article/ztxx/201803/20180302719123.shtml.

 

Putting China’s Fair Competition Review System Into Action

National emblem of the People's Republic of China Law360 Article on Putting China’s Fair Competition Review System Into Action by Shelley Zhang and David Goldstein

In June 2016, China promulgated a Fair Competition Review System (FCRS), which is intended to ensure that competition agencies foster competitive markets in China.  Recently, China’s competition agencies jointly issued the Implementing Rule of the Fair Competition Review System, which provides guidance regarding the FCRS,  including review mechanisms and procedures, review criteria, policy guidance, and supervision and accountability.  Orrick partners Shelley Zhang and David Goldstein have published an article, “Putting China’s Fair Competition Review System Into Action,” in Law360 today providing an overview of the implementing rules.  Click here to access the article.

 

 

China’s Fair Competition Review System, 1 Year Later

Orrick Partner Shelly Zhang Headshot China's Fair Competition Review System, 1 Year Later

Shelley Zhang, an Orrick partner based in Beijing, recently published in Competition Law360 an article discussing the first year of the China State Council’s fair competition review system, which is designed to foster the development of competitive markets throughout China.  A link to the article appears here.

 

 

 

 

China’s NDRC Seeks Comments on Draft Guidelines for Price-Related Behavior of Industry Associations

Flag map of People's Republic of China China’s NDRC Seeks Comments on Draft Guidelines for Price-Related Behavior of Industry Associations

On March 24, 2017, the PRC National Development and Reform Commission (“NDRC”) issued draft Guidelines for Price-Related Behavior of Industry Associations (“Guidelines”). The Guidelines encourage industry associations in the People’s Republic of China to engage in price-related behavior that benefits industry development, market competition and consumers’ legal interests; outline the legal risks that may be involved in various price-related behavior by industry associations; and provide guidance for industry associations to assess whether price-related behavior poses legal risk. The NDRC is accepting public comments until April 24, 2017.

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A Six-Month Update of China’s Fair Competition Review System

A Six-Month Retrospective of China's Fair Competition Review system established by the June 2016 China State Council Opinion to protect against the potential abuse of administrative power by Chinese gonvernment agencies that could result in anti-competitive effects. Picture of Xinhuamen, the Gate of New China, in Beijing., the formal entrance to the Zhongnanhai government compound including China's State Council.

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”).[1]  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.[2]

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China’s and Japan’s Antitrust Enforcement Agencies Warm Up To Each Other

Chinese and Japanese crossed flags increased communication, cooperation and coordination among Chinese and Japanese antitrust enforcement agencies

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.

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China’s Fair Competition Review System: China Takes Another Significant Step Eight Years After Enacting the Anti-Monopoly Law

Rshutterstock_99699011-2ecognizing 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,”[1] 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.

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