8/7/2023 0 Comments Jing jing zhang ustr![]() ![]() With respect to the transfer of computer software copyrights, the local commerce commission, together with the science and technology administrative agency, i.e., the science and technology bureau, will assess the transfer and make its decision in accordance with the Administrative Regulations on the Import and Export of Technology (effective January 8, 2011) and the Regulations on Protection of Computer Software (amended March 1, 2013).With respect to the transfer of patents and exclusive rights to integrated circuit layout designs, an application has to be submitted to the local commerce commission, which will solicit written opinions from the local IP administrative agency, i.e., the local counterparts of the State Intellectual Property Office, and make its decision in accordance with the Administrative Regulations on the Import and Export of Technology (effective January 8, 2011).Technology which is restricted from export under the Catalogue of Technologies Prohibited and Restricted from Export (2008 Catalogue, amended September 16, 2008) 1 must undergo the following assessment mechanism: ![]() ![]() The IPR transfer will be assessed based on its impact on national security and the country's core technology innovation capacity in major areas. The IPR transfer is defined as the transfer of domestic IPR from Chinese entities or individuals to foreign companies, individuals or organizations, including by change of IPR holder or actual control person or by exclusive license of IPR. ![]() As the Measures refer to onshore enterprises ( jingnei qiye), their scope includes acquisition of Chinese-foreign joint ventures or their IPR by foreign parties. Certain IPR Transfers Subject to Security AssessmentsĪ security assessment is required before the proposed transfer of IPR to foreign parties if the transfer involves patents, exclusive rights to integrated circuit layout designs, computer software copyrights or new plant varieties (including the right to apply for IPR registration) through the export of technology and/or acquisition of an onshore enterprise by a foreign party. The features of security assessments under the Measures are set forth below. Issued by the General Office of the State Council, the Measures are intended to enhance national security institutional systems, safeguard national security and major public interests, and regulate the transfer of IPR to foreign parties. Technologies related to national defense as opposed to national security are separately governed and therefore are not subject to the Measures. Public interest here is apparently defined as the development of core innovation capacity in major technology areas. The Measures on the Transfer of Intellectual Property Rights to Foreign Parties (Pilot) (“Measures,” click here for the Chinese-language text) (dated March 18 and published March 29, 2018, with immediate effect) tighten scrutiny over the transfer of intellectual property rights (IPR) to foreign parties on national security or public interest grounds. Additionally, WilmerHale has conducted internal investigations for Asian businesses, including one dealing with alleged kickbacks and extortion by sales representatives and another related to a major US-based manufacturer’s acquisition of a Chinese firm for $300 million. For one US-based client, we helped reduce or eliminate fines following an antitrust investigation in China, Japan and Korea, securing what has been reported as the largest-ever reduction in fines from the US Department of Justice following its investigation. The firm has represented major multinational companies in investigations across China, Hong Kong, Japan, South Korea and Thailand. We have implemented investment strategies, structured business transactions and devised sophisticated market access strategies for multinational companies around the world, and have negotiated with and litigated against virtually every major trading nation, as well as emerging market countries. The team advises Chinese entities on their outbound commercial, investment and trade transactions, including obtaining regulatory approvals, and on the structuring of transactions and defending against trade actions. Members of the team have structured, negotiated and concluded a range of landmark agreements with China, most notably China's intellectual property rights agreements, market access agreement and the comprehensive US-China bilateral agreement that paved the way for China's WTO membership, covering all goods, services and agriculture in the Chinese economy. ![]()
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