Antitrust and Licensing on June 3, plus Standards, Data and E-Commerce: Plenty for Everybody

The US-China trade war began with disputes over the transfer of technology to China, including forced technology transfer.  How much has the licensing environment improved for the foreign business community? How will China’s developing antitrust regime affect foreign businesses seeking to monetize their IP in China?  Considering joining us at next week’s webinar (June 03, 2020, 4:30 – 5:45 PM PST) (previous posting had a typo!).  The speakers are Hao Yuan (Tsinghua Law School/Berkeley Law); Stuart Chemtob (Wilson Sonsini); Deng Fei (Charles River Associates); David Dutcher (Western Digital) and Robert Merges (Berkeley Law). Here is the link to the series description, and to the registration. This series/program incurs a charge, except for students/media/BCLT and other benefactors.

In another licensing-related development, on June 16, 2020, from 12-1pm EDT,  I will be speaking along with Jim Harlan, Senior Director, Standards & Competition Policy, InterDigital, Inc on the US Department of Commerce’s Bureau of Industry and Security’s (BIS) ban of Huawei and its effect on global Standards Developing Organizations (SDOs). This program is sponsored by the American Intellectual Property Law Association’s Standards and Open Source Committee.  Non-AIPLA members may join this open event.  Call: +1 (347) 991-7204, passcode 251151532.

A video of the recent webinar we hosted at Berkeley on “Following the Data: What the Latest Research Says About China’s Legal and IP Environment” with Ben Liebman, Tobias Smith, Fei Deng, Melissa Schneider and Robert Merges is found here.  China Daily’s reporting on the IP Aspects of that program is found here.

Finally, I recently was interviewed by Pinduoduo on e-commerce regulation in China and IP.  Here is a link to the podcast on Spotify.

Comments of George Mason University on Antitrust Questionnaire

Attached are the comments in Chinese and English of George Mason University’s Global Antitrust Institute on the Questionnaire on Intellectual Property Misuse Antitrust Guidelines distributed by NDRC.

The Director of the GAI is Joshua D. Wright, a former U.S. Federal Trade Commissioner. The GAI’s International Board of Advisors is chaired by Douglas H. Ginsburg, a Senior Judge on the United States Court of Appeals for the District of Columbia, and a Professor of Law. Koren W. Wong-Ervin is a former Attorney Advisor to then-Federal Trade Commissioner Joshua D. Wright and is also an author of this comment.

These comments recognize the pro-competitive effects of IP, and are a very useful summary of US practice in this area. The authors’ summarize their approach as follows:

“While the U.S. antitrust agencies apply the same general antitrust analysis to matters involving IPRs as to any form of tangible or intangible property, that is not to say that they do not recognize the important distinguishing characteristics of IPRs.  For example, the inventions and works protected by IPRs are non-rivalrous.  Thus, one firm using a specific IPR does not diminish the ability of another firm to use the same IPR.  Also, the cost of having another firm use an existing IPR is effectively zero.  As a consequence, from a static welfare perspective, it is desirable to disseminate IPRs to every firm (or consumer) that has a positive valuation for the IPR.  Of course, doing so would create a strong disincentive to innovate in the first place, to the great detriment of dynamic efficiency, which refers to the gains that result from entirely new ways of doing business.  While static efficiency may increase consumer welfare in the short run, economics teaches us that dynamic efficiency, including societal gains from innovation, are an even greater driver of consumer welfare.”

I hope that these comments by leading experts in the field are  helpful to Chinese colleagues, and I appreciate the transparency of the commentators in providing them to this blog.

A Quick Read of the AML IPR Enforcement Guidelines (Fifth Draft)

As China becomes more of a stakeholder in the IP system, and no longer sees itself as a passive player, how will its perspective on the relationship between intellectual property and antitrust change?

The recently announced fifth draft of SAIC’s “Guidelines on Antimonopoly Law Enforcement in the Field of Intellectual Property Rights” gives some additional perspective on this.  After an initial read, my response is cautiously positive.

Continue reading