Though Chinese New Year is still a few weeks away (January
31), disputes about the licensing of standards-essential
patents look to dominate IP news in Asia in the Year of the
Horse. The topic is drawing increased attention as courts and
companies grapple with what constitutes reasonable licensing
terms, and when fair but aggressive monetisation tactics cross
the line into anti-competitive behaviour.
|Amy Gao of
Huawei spoke with Managing IP about its dispute with
InterDigital at the Business of IP Asia conference in
Hong Kong last month
China is unsurprisingly a flashpoint. The spat between
Chinese telecommunications firm
Huawei and US non-practicing entity InterDigital over
InterDigital’s assertions of its
standards-essential patents has spanned the globe, from the
ITC to the
European Commission to China’s Guangdong High
One interesting finding in Guangdong was that
InterDigital’s behaviour outside of China, such as
its attempt to block Huawei’s products from the US
market via the ITC and its bundling requirements, were in
violation of the
Anti-Monopoly Law. And last month, the dispute took an even
more dramatic turn when InterDigital said that the Chinese
threatened to detain its executives if they entered the
This is not the only competition-related matter in China.
asked the Ministry of Commerce to scrutinise
Microsoft’s licensing practices to ensure that
it does not raise fees for the wireless patents that came from
its acquisition of Nokia. Meanwhile, Qualcomm has announced
that it is under investigation for Anti-Monopoly Law
violations, which some believe may be related to its patent
FRAND is also a hot topic in India. A long-simmering dispute
between Ericsson and Indian phone manufacturer Micromax has
drawn the attention of India’s Competition
Commission, which has said it will
investigate Ericsson’s licensing practices.
However, this came after the Delhi High Court issued an
ex-parte injunction against Micromax, which some see
as misguided. The injunction would have shut
Micromax’s doors if the parties had not come to an
interim agreement pending resolution of the case.
involve issues that have vexed judges and
practitioners around the world. Who determines what a fair and
reasonable rate is? Should the behaviour of the parties during
the negotiations (such as whether there was litigation) affect
what constitutes a fair rate? When if ever should tactics such
as bundling demands be allowed?
Of course, developments in the traditional IP fields will
continue to be of great importance. China’s new
Trademark Law will take effect on May 1, while a draft of the
implementing regulations was released two weeks ago. In other
parts of Asia, companies are keenly watching what happens in
Myanmar as it
drafts some of its first IP laws.
If you have anything to add, let us know. What do you think
will be the biggest IP issues in Asia this year?