Ge, Pommiès, & Shen on the Beijing High Court's SEP Guidelines

This morning on the IAM Blog Jacob Schindler introduces a post by Jill Ge, Charles Pommiès, and David Shen on articles 149 to 153 of the Beijing High Court's Revised Guidelines for Patent Infringement Determination, which deal with the litigation of SEP cases.  I mentioned these guidelines here recently, as discussed in a post on the Kluwer Patent Blog by Yin Li, Hui Zhang, and James Yang.  Today's post also links to the guidelines themselves, in Chinese; if any readers can point me in the direction of a translation into English (or French or German), I'd appreciate it.

According to Ge et al., under article 24(2) of the 2016 Interpretations (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases, "an injunction is not generally available where during the negotiations, (i) a patentee intentionally violates the FRAND obligations, and (ii) the accused infringer is clearly not at fault."  The newly issued Beijing High Court Guidelines "affirm the majority view in China that SEP-based injunctions should be denied, unless there is wrongdoing on the part of an implementer.  It should be noted that this FRAND defence to injunctions has nothing to do with the competition law."  In addition, according to the authors, "China has essentially adopted a fault-based analytical framework to assess whether a SEP injunction should be granted" patterned to some degree after the CJEU's judgment in Huawei v. ZTE, though "[c]ompared to Europe there is a greater onus on the patentee/licensor to act 'reasonably'."  In addition, the authors raise questions regarding how Chinese courts will determine whether a party is "at fault for 'obstructing or delaying the licensing negotiation without justifiable reasons,'" and whether "an offer or counter-offer [is] "clearly unreasonable."  They also note that under the guidelines if neither party is at fault the implemener should deposit an interim bank guarantee, but that "leaving the amount of payment to be determined by an implementer without checks by the court could be problematic."

For readers interested in FRAND/SEP issues, this is essential reading; according to Mr. Schindler's introduction, there are over 2O SEP cases pending at the Beiing IP Court right now, suggesting that these issues are only going to become more salient in the months to come.  Additionally, as I noted last week, you also might want to register for a free webinar tomorrow hosted by the USPTO and the Federal Circuit Bar Association covering these issues.  Ms. Ge, who as I like to point out is one of my former students, will be one of the speakers.