China SAMR Draft Guidelines in the Field of Standards Essential Patents
On June 30, 2023, China’s State Administration of Market Regulation (SAMR) released “Draft Antimonopoly Guidelines in the Field of Standard Essential Patents.” The proposed guidelines include numerous problematic articles, including the following.
First, the draft guidelines place an unduly onerous and unreasonable obligation on contributors to standards development re the authenticity and accuracy of the declaration information, which is unparalleled internationally (§5).
Second, the draft guidelines impose a mandatory non-voluntary FRAND obligation (§6).
Third, the draft guidelines place onerous and impractical burdens on patent holders to provide lists of all standards essential patents (§7).
Fourth, the draft guidelines ignore the reality in which multiple technical solutions may be adopted into a standard (§8).
Fifth, the draft guidelines erroneously characterize each and every standards essential patent as bestowing a 100% market share and market power, ignoring the effectiveness of FRAND commitments (§11 and §12).
Sixth, the draft guidelines fail to defer to the patent policy of the specific standards development organization as delineating the scope of FRAND commitment (§13).
SAMR’s draft guidelines contain additional problematic proposals. They create significant burdens on patent holders without grounding them in empirical evidence or in sound competition law analysis. Patent enforcement requires court intervention in China. U.S. patent holders cannot obtain relief in China without successfully litigating in a Chinese court against a Chinese infringer, and courts look into the facts of each case. Therefore, SEPs do not bestow any market power. However, when such litigation takes place, SAMR has intervened, and now seems to seek additional bases for such intervention despite lack of market power by SEP holders.
Fourth, engage in multilateral and bilateral dialogues with other jurisdictions to promote agreements on principles of due process in investigations and policy development. Some non-U.S. jurisdictions use the guise of “competition law” to help their national champions without due process, or develop policies without due process. Procedural safeguards can help reduce some of these dynamics.