作者:倪振华 金杜律师事务所知识产权部

Guangdong High People’s Court recently issued a “Working Guideline of Guangdong High People’s Court on the Trial of Standard Essential Patent Dispute Cases (for trial implementation)” (hereinafter referred to as “the Guideline”) on 26 April 2018, which is the most comprehensive guideline for trial of SEP-related disputes in China till now. Theoretically speaking, this Guideline has a binding effect on three major IP courts/tribunals in view of jurisdictional mechanism of SEP-related cases in Guangdong province, including Guangzhou IP Court, Shenzhen IP Tribunal (of Shenzhen Intermediate People’s Court) and Guangdong High People’s Court which is the appellate court of the former two.  However, this Guideline actually reflects some widely recognized court practices on SEP-related issues, and will probably be referred to by other courts in China.
Continue Reading Guangdong High People’s Court Issued a Guideline for Trial of SEP Disputes

By Susan Ning, Cheng Liu and Shenglan Liu  King & Wood Mallesons’Commercial & Regulatory Group

Cning_susanhuntitledina’s top antitrust authority, the Anti-monopoly Commission (“AMC”) of the State Council is to issue the integrated IPR antitrust guidelines. AMC has entrusted three antitrust enforcement agencies, the National Development and Reform Commission (“NDRC”), the State Administration of Industry and Commerce (“SAIC”) and the Ministry of Commerce (“MOFCOM”), and the State Intellectual Property Office (“SIPO”) with the task of drafting antitrust guidelines on intellectual property rights (IPRs). It is reported that these agencies are finalizing their respective draft guidelines and will submit the drafts to AMC by the end of March 2016. Since AMC is responsible for coordinating antitrust policies in China, it will take the lead to consolidate the said four draft IP guidelines and issue an integrated one.
Continue Reading China’s State Council to announce integrated IPR antitrust guidelines

By Susan Ning  Hazel Yin and Ruohan Zhang  King&Wood Mallesons’ Antitrust Group

untitleduntitledOn May 4, 2015, the National Development and Reform Commission (NDRC) published the Notice on Reinforcing Supervision over Drug Prices (“Notice”). The Notice includes a range of specific issues on the supervision over drug price, including immediately launching special inspections into illegal conducts

作者:宁宣凤彭荷月、刘佳、萧达莎

        经过十几年的孕育和酝酿,《反垄断法》于2008年8月1日生效实施。这不但是我国法制建设发展的阶段性成果,更是中国市场经济发展的里程碑事件。《反垄断法》共8章57条,确立了一系列崭新的制度——不但反经济垄断,也反行政垄断;不仅有域内效力,还有域外效力;不但确立了公共实施,也肯定了私人执行。所谓反垄断公共实施(public enforcement),即指国家赋权的反垄断执法机构开展的反垄断行政调查执法活动;所谓反垄断私人执行(private action),那些自身利益受到反竞争行为影响的法人或自然人通过向法院提起民事诉讼来执行《反垄断法》的。在过去五年中,反垄断公共实施和私人执行共同构建和促进了我国《反垄断法》的实施。这两者相辅相承、相互补充,共同承担着《反垄断法》预防和制止垄断行为,保护市场公平竞争,提高经济运行效率,维护消费者利益和社会公共利益的使命。

        《反垄断法》确立的反垄断民事诉讼与专门机构的反垄断行政执法相结合的“双轨制”符合当今世界各国和地区反垄断法实施的普遍做法和明显趋势,也是能够更为全面的在实践中切实落实《反垄断法》。然而,“双轨制”在实践也会存在一些问题,同一反垄断事件既在法院提起民事诉讼,又进行行政审查,难免有需要协调的方面。对于两个程序之间的协调,目前的一些规定虽然有所涉及,但仍有很多问题没有得到解决。本文意在对这些问题作一个梳理,希望能够抛砖引玉,同时也期待题述问题得以在实践中被司法机关和行政机构探索解决。

Continue Reading 《反垄断法》的双轨制——行政执法与民事诉讼的互动

By Susan Ning, Kate Peng, Jia Liu and Rui Li    King & Wood Mallesons’ Antitrust & Competition Group

After more than ten years of deliberation and discussion, Anti-monopoly Law of China (AML) finally came into effect on August 1, 2008. This is not only a periodic achievement in the development of Chinese legal system but also a milestone event since the establishment of Chinese market economy. AML contains eight chapters and fifty-seven articles and sets up a brand new mechanism against economic and administrative monopoly with both domestic and international reaches and private and public enforcement. Public enforcement refers to administrative investigation and enforcement activities initiated by anti-monopoly agencies duly authorized by the nation. Private action refers to anti-monopoly civil action filed at the court by the legal or natural person injured by the anticompetitive conducts. In the past five years, the public and private enforcement have worked in tandem to promote the enforcement of AML. The two enforcement methods complement each other to prevent the anticompetitive conducts violating AML, protect fair market competition, enhance market efficiency, and safeguard consumers’ interest and the public interest.   
Continue Reading The Dual System of Anti-monopoly Law – The Interplay between Administrative Enforcement and Civil Action

By Susan Ning, Liu Jia, Xiao Dasha and Hazel Yin

On 1 August 2013, the very same day of the fifth anniversary of China’s Anti-Monopoly Law (“AML”), Shanghai Higher People’s Court (“Shanghai Higher Court”) made a final judgment on the Rainbow v. Johnson & Johnson case.  It is the first case of vertical monopolistic agreement and the court overruled the judgment of the first instance, and ruling for the appellant (i.e., the plaintiff). This case is also the first anti-monopoly case in China where the second-instance court reversed the judgment of the first instance court and ruled in favor of the plaintiff.
Continue Reading Chinese Court Rendered Final Judgment on Rainbow v. Johnson & Johnson – the First Antitrust Private Action of Vertical Monopolistic Agreement

作者:宁宣凤刘佳尹冉冉

2013年8月1日,也即在《反垄断法》实施五周年的纪念日当天,上海市高级人民法院对全国第一起纵向垄断协议案件(锐邦诉强生案),作出终审判决——判决上诉人(也即原告)胜诉。本案也是迄今为止第一起二审法院撤销一审判决并判决原告胜诉的反垄断民事案件。
Continue Reading 第一起纵向垄断协议民事诉讼案件:锐邦诉强生固定转售价格案简析

By Susan Ning, Hazel Yin, and Han Wu

On July 17th, People’s Daily reported that the Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission is investigating gold retailers including but not limited to Shanghai Lao Feng Xiang (600612. SH) and Yuyuan Tourist Mart Company (600655.SH) for manipulation of gold jewelry retail price in Shanghai under the auspices of the Shanghai Gold & Jewelry Trade Association (“SGJTA”).
Continue Reading NDRC Probes Shanghai Gold Association and Gold Retailers for Price Fixing