The United States, Japan, and Canada have now asked to join the EU consultation request with China at the WTO regarding Chinese practices in issuing anti-suit injunctions (“ASIs”) for standards-essential patents (SEPs). […]
EU Files Request for Consultations on Chinese Judicial SEP Practices
On February 18, 2022, the EU filed a request for consultations at the WTO regarding China’s SEP practices as well as China’s failure to respond to the prior Article 63 transparency request […]
Recent Translations and Comments on Laws and Cases
Translations and comments are made available on patent and trademark examination guidelines, Seed Law, Plant Variety JI, AUCL JI, and Oppo v Sharp. With regard to the SPC decision in Oppo v Sharp a question is raised concerning China’s efforts to regulate and take jurisdiction over global SEP royalty rate setting.
China Responds to EU Article 63 Request
On September 7, 2020, China responded to the EU Article 63 request. The one-page Chinese response repeats the position taken by China in 2006, that Article 63 only affords an opportunity for a member to make a transparency request of another member. As China notes in its response, “there is no such obligation under the TRIPS Agreement for China to respond.” This position repeats the position taken by China that “the TRIPS Agreement only refers to a Member’s right to request information, but there is no mention of a corresponding obligation of the requested Member to actually follow the request.” (Para. 8, P/C/W/465, Jan. 23, 2006). As this prior Article 63 response appears to be the template for some elements of the current response, I have inserted it below. The Chinese responses might be understood as rejecting a teleological interpretation of the TRIPS Agreement to effectuate its purposes, or one based on the good faith of the parties, as it is difficult to conceive of the reason for a treaty provision that offers an opportunity to make an inquiry of another country, but does not require that country to respond. The response also ignores the significant developments in case law in China in recent years.
Synthesizing Developments on Linkage from the July 15 Berkeley Program
China’s new patent linkage regime involves parallel civil and administrative enforcement mechanisms. Innovative pharmaceutical companies should prepare for the possibility of generic challengers and determine which mechanism will best suit their purposes. Biologics are not protected under this new regime.
EU Files Request at WTO for Chinese Disclosure of SEP Cases and Practices
On July 6, 2021, the European Union filed an “Article 63.3” request at the WTO requesting further information on four SEP cases in China. publication of these importance cases will benefit all parties through increased transparency and disclosure of how China has evolved its policy in this contentious area.
The NTE Report On Chinese IP And Its Relationships To Chinese Legal Developments
USTR’s recently released NTE report shows continuing lack of clarity over key Chinese legal terms. The report also declines to discuss commercial rule of law issues raised in last years Special 301 report. What role does commercial rule of law have in the Biden Administration’s trade diplomacy? The answer is unclear.
A Season of CNIPA Rulemaking
Several new rules from China’s State Administration for Market Regulation portend a more active role for administrative enforcement of patents, in both patent linkage and major disputes affecting Chinese national interests. How much due process do these rules afford? Are they compatible with the TRIPS Agreement? Will foreigners be treated fairly? Will the administrative agencies be transparent in their decisions and make their cases publicly available. SAMR’s database of IP cases is also relatively new.
There are a number of open issues.
The Cart Before the Horse in China’s Patent Linkage Regime
Judicial involvement in this legislation is needed to harmonize the legal complexities of patent linkage which complex issues of patent law, civil law, administrative law, and pharmaceutical regulation.
Trade Wars: A New Beginning?
Why is this year’s Special 301 Report (the “Report”) from USTR (April 29, 2019) different from prior reports? In prior years, this report often repeated materials found elsewhere, such as in the […]