Scope of the China Patent Law and Application Procedures

Patent rights are one type of intellectual property right. The current Patent Law in China protects three types of work including inventions, utility models and designs. The technical aspect of a product is the  primary  protected content of inventions and utility models, whereas patents of design concern new designs of shape, pattern or a combination of the two. The authority overseeing patent issues, including patent application, is the State Intellectual Property Office of P.R.C. (SIPO). The examination and approval of a patent is based on a first-to-file principle. Starting from the filing date, a patented invention  can enjoy a 20 year protection term whilst the term for a utility model and design patent is limited to 10 years.

The general process of applying for a patent right in China is illustrated below; details of each patent type will be discussed in later sections.

Step I: Check if the patent has been registered or not before making an application.

Step II: Documents preparation:

· Inventions &Utility models – Prepare two copies of all the following documents:

Introduction

Effective management of investor relations is a crucial advantage for any company and ensures the alignment of shareholder interests.

How can these relationships be managed efficiently and harmony of interests maintained? What tools need to be used? The secrets are revealed in the following interview with Mr. LYNGE BLAK, renowned expert in Investor Relations.

CENSERE: Why do you see communicating IR-value as an art?

LYNGE BLAK:

Private Equity Regulation SNAPSHOT in HONG KONG, China and Singapore

From 2005 to 2011, the Greater China region, including Mainland China, Hong Kong, Macau and Taiwan, was the hottest Asia-Pacific place for international private equity investment choices. In 2007, the total value of private equity investments in the Greater China region was US$21 billion. Although the investment value was reduced as a result of the global financial crisis from 2008 to 2010, the value has rebounded to US$28 billion in 2011 - even higher than the level recorded in 2007.

Transfer pricing refers to the way that multinationals price all transactions (goods, services, royalties, interest etc.) between related entities.  Transfer pricing is a primary concern for tax authorities that want a fair share of tax revenue and for multinationals that want a true measure of their profit driving activities. Such transactions need to be priced on an “arm’s length” basis and multinational taxpayers are faced with significant compliance obligations and penalties to ensure compliance with this principle.

Since 60-80% of the value of an MNC is considered to lie in its intangible assets, it is no surprise that the OECD and tax authorities globally are now particularly focused on this aspect of transfer pricing.  The potential risks can include disallowance of tax deductions for license fee/royalty payments paid to related parties, arguments for significant exit taxes where intangibles are moved between group entities and claims for increased profitability in local distributors due to the presence of local marketing intangibles.

Levelised cost of energy (“LCOE”) provides greater accuracy when appraising energy projects than current methods. LCOE is expressed in cents per kilowatt hour (kWh), and takes into account not only the capital cost of building a project, but also the operating and maintenance expenses incurred (such as the length of a power purchase agreement).  As it doesn’t include the profit a plant owner desires, LCOE is often not adapted by buy or sell side stakeholders now that analysis often reflects projects with bearish returns. 

The banks and project financiers who apply LCOE to their models typically hire consulting firms to generate LCOE analyses in order to help them make investment decisions.  Some large developers such as Siemens and General Electric, they have internal teams performing the service internally.  LCOE analysis is not only valuable for developers and bankers; it is also useful for policy makers, with particular regards to industries reliant on government incentives, like solar energy.

With Australia leading the way in developing unconventional gas reserves in Queensland and across Australia, other regional players are trying to follow in Australia’s footsteps.

Coal Bed Methane in Australia

Australian exploration companies have focused on developingCoal Bed Methane (“CBM”) reserves and have been credited for being the most mature industry players in the field of unconventional gas (“UG”)within the region. With three sanctioned Liquefied Natural Gas (“LNG”) export projects utilising reserves in Queensland, the next 5 years will see investment of over $50bUSD, these developmentswill supply more than 25m metric tons of LNG annually to increasingly energy starved Asian buyers.

The rapid pace of PE business developing in China has seen the regulatory regime struggling to keep up.With no coherentlaw or regulation governing PE in Mainland China at a national level, the government has taken initiative by appointing the National Development and Reform Commission (“NDRC”) to take a leading role in forming a new regulatory environment for Private Equity and Venture Capital in China.

The recent outcry for regulation is due to Limited Partners(“LP”)[investors] becoming caught up in funds mimicking Ponzi-schemes, promising extravagant returns and attracting investors by flooding them with early high dividends that abruptly end as soon as the fund is closed for investments. Thisisa worst case scenario, but it illustrates the fundamental problems the Chinese Private Equity industry is facing; a lack of transparency and oversight. Also, the basic economics of the Chinese investment climate proves to be another problem; with too much capital to be invested, unsophisticated LP’s are often lured into these deals as PE’s renownedfor delivering extraordinary returns to its investors internationally.

HKEx endorses wider Intellectual Property disclosure.

Can a wider disclosure of IP bring benefits to a launching business? The HK Exchange believes so. The recent guidance note from HKex in relation to Main Board Listing Rule Appendix 1 - Part a Paragraph 28(4) - and GEM Listing Rule Appendix 1 - Part a Paragraph 28(4) – encourages listing companies to disclose how IP impacts their business and its profitability.

What’s the reason behind this initiative? Generally, wise investors know that IP portfolios do not automatically translate into profits. Only companies that effectively manage and grow IP are the ones capable of generating superior returns.

Censere takes a look at changing environment for FDI in infrastructure.

 

The development of infrastructure in the Asia ex-China region has undeniably lagged behind the strong economic growth in the region.

The projected growth for the coming decade has put infrastructure investments on the radar of foreign investors who eye it as a “Trillion Dollar Holy Grail”.  However, the question remains whether foreigners can participate and capitalize on the “brick-building” of Asia.

The Asian Development Bank estimates that USD$8 trillion will be invested in the region from 2011-2020 and that approximately 10% of these projects will involve FDI; with the remainder coming from public finances or local banks.

Censere examines solar energy in Asia. We analyse two emerging technologies: photovoltaic and solar thermal, on a country-by-country basis.

Energy demand is projected to double in Asia-Pacific by 2030.  Accordingly, there is an urgent need for new and innovative ways to generate power and reduce greenhouse gas emissions.  Solar energy has long been singled out as one of the strongest contenders amongst renewable energy sources.

 

 

Several technologies are currently being tested, but two forms have been commercialised for converting sunlight directly into electricity and now dominate the market:

Western executives have spent the last decade worrying about the threat of competition from China due to its access to cheap labour. Having been the home to manufacturing factories for companies like Apple, China’s competitive strategy up to now has been to compete on price. The current trend is leaning towards the next Apple being born in China due to the rapid increase in innovation and China’s desire to move up in the value chain – going from being a manufacturer of products to the inventor of the products.

Patent application has been an indicator heavily used to track innovation. It is no hidden secret that Chinese patent applications have now surpassed both Japan and the US due to its impressive 30% annual growth rate (vs Japan’s 4% growth rate).

The problem however with using patent application numbers as an indicator of innovation is misleading due to these three factors:

Commercialization of patents is lower than e.g Japan and Korea by 40%.Number of patents actually granted and cited by other patents is also lower reflecting lower quality patents than e.g Japan which is cited more frequently and has a higher success rate in granted applications.Patents that fulfill the above, fail to reach the market due to lack of an ecosystem built around the patent (e.g. bad licensing agreements and lack of framework to collect royalties among Chinese firms due to lack of expertise).

However it is dangerous to dismiss the idea of China potentially becoming a legitimate patent powerhouse; there are early signs of a rapidly maturing market for IP. The high application number reflects Chinese firms starting to respect international IP regulations and the commitment it entails.

An example supporting this hypothesis is the ongoing international IP litigation between two Chinese companies; ZTE and Huawei, two companies with headquarters close to Shenzen. They are also a prime indicator of firms driving the heavy growth in patent application coming from China given their increase in R&D spending by 30-50% during the recession vs their Japanese counterparts who cut spending by more than 10-20%.

According to IFRS 2, share-based payment transactions are categorized as three types: equity-settled, cash-settled, and a choice of settlement in equity or in cash. Employee share option plan (ESOP) is an example of equity-settled transactions. Share Appreciation Rights (SAR) falls into the category of cash-settled transactions. IFRS 2 covers recognition, measurement and disclosure of share-based payment transactions. The recognition and measurement are affected by both transaction types and market or non-market performance conditions. Market conditions are defined as the conditions upon which the exercise price, vesting, or exercisability of an equity instrument depends on the market price of the entity's equity instruments. Level of disclosures has also been required to raise under the standard. Among the accounting treatments, estimating the fair value of the ESO from the perspective of the employer will be the main focus to the management of most companies. It could also be the most difficult issue when applying this new standard. Under IFRS 2, both listed and unlisted entities will need to estimate the fair value of its ESO that were granted after 7 November 2002 and had not yet vested on 1 January 2005. Valuation should be determined by reference to market price. If market price of share options does not exist, IFRS 2 would require an option valuation model be applied for the valuation of ESO. All option pricing models should take into account, as a minimum, the following factors: (a) the exercise price of the option; (b) the life of the option; (c) the current price of the underlying shares; (d) the expected volatility of the share price; (e) the dividends expected on the shares (if appropriate); and (f) the risk-free interest rate for the life of the option. Above are also the common factors that influence market value of exchange traded options. Since they could have a significant impact on the option valuation, the determination of these variables requires a large amount of professional judgements and assumptions, especially for shares of unlisted entities. IFRS 2 provides application guidance on estimating the fair value of share options granted. In addition to the six factors above, it requires that other factors that knowledgeable, willing market participants would consider in setting the price shall also be taken into account. To properly evaluate ESO, the additional elements could include vesting period, forfeitability, possibility of early exercise and non transferability. All these restrictions and factors will have an effect to reduce the value of option. Also, separating options by groups of recipients with relatively homogeneous exercise behaviour for more accurate valuation should also be considered. According to IFRS 2, adoption of pricing model for ESO valuation is part of an entity's selection of new accounting policies and should be applied consistently to similar share-based payment transactions. In past, Black Scholes model is the most commonly used methodology for option valuation. Binomial model is another widely accepted model. IFRS 2 does not specify which pricing model should be used or is preferred. However, it indicates that Black Scholes model could fail to incorporate some unique features for ESO valuation, such as possibility of early exercise and change of expected volatility over the option's life. Comparison of different option pricing models is discussed in more details in a separate article. In general, more flexible option pricing models can be applied to incorporate the variety of factors and assumptions in ESO valuation. In rare cases, the entity may be unable to estimate reliably the fair value of the equity instruments granted at the measurement date. In these rare cases only, the entity shall instead measure the equity instruments at their intrinsic value. Given the potential impact on their bottom line and the professional judgements required for various pricing models, it is widely expected that more companies will seek opinion from independent professionals in valuing their ESO. Independent valuer can help the management better gauge and understand the existing compensation package with share options. Should you require any assistance for ESO valuation or related advisory service, please do not hesitate to contact us.

On another occasion a chemical plant replaced an essential catalyst in the reactor with an improved version. The reactor, which had been the limiting factor for the production rate, could now produce much more and was no longer the bottleneck. As a result the production rate of the plant increased considerably and the the Production Manager got a promotion. These are clear examples that design capacity is not an iron clad figure carved in stone. The term design capacity is often misunderstood. Add to this the confusion the term 'capacity' causes. The word is used in conjunction with design, actual, nameplate, theoretical, installed, proven, economical etc. Sometimes production rate is used and can be expressed per hour, day, month or year. For simplicity and clarity we define capacity as the ability of a facility (factory/plant) to produce an quantity of product(s) in a certain time frame at a defined quality. It could be the number of ships built at a shipyard per year, the m2 of ceramic floor tiles produced per hour or the tons of gasoline in a month in an oil refinery. It is quite a normal experience that the intended (design) capacity differs from the actual one. Unfortunately more often than not the actual is lower than the design. There is a great time lag between the conception of a facility and the actual construction and start up. A time span of 2-3 years can be quite common. The design was made years before the facility actually starts producing and during this time conditions might have changed. Cooling water temperature is actually higher, quality of feedstock material worse than assumed, product quality more stringent or government regulations require amended operating conditions. Possibly even simple errors in the assumptions or in the calculations could be a reason, although this would never be admitted. These are just a few examples, but certainly anyone in a manufacturing or engineering position recognises these and can add to this list from his or her own experience. In the initial years it might not even be apparent that the facility is not able to produce the intended (design) amount of product. It takes time to build up a market, sales are slowly increasing, production is lower than the design capacity calls for and the facility is therefore underutilised. However at a certain stage it may become evident that the facility cannot produce what everybody expected and what was promised by the design. Then the blame game might start. Management blames the Operations staff that they cannot operate the facility properly, Operations replies that Management never allocated enough money to install the right quality equipment, both Management and Operations blame the design contractor for a lousy job and the story might go on for years. In the meantime the production certainly will not increase if adequate measures are not taken. Instead, it would be much more productive if proper analysis is made of the actual production process versus the design. Properly controlled and well defined test runs should be carried out under representative conditions to assess the capacity of the facility and of each individual piece of equipment. This information can then be used to determine where the bottlenecks in the facility are and might even offer possible solutions to remove the bottlenecks. As an alternative, Management could consider appointing an experienced, professional consultant to aid them in the efforts mentioned above. This approach has a number of advantages. As plant management is less involved they will have more time to concentrate on their core activity of running the facility. Moreover the consultant’s experience is not confined to this particular facility but covers a much wider range. Last but not least and frequently overlooked outside experience offers a fresh look. If you would like more information concerning Censere's Technical advisory services, please contact your nearest office.

Let's now examine each in more detail. Management is responsible for ensuring that a company's assets are properly utilised and protected. Insurance addresses the issue of protection, however, if the sums insured do not properly reflect the possible risk then management is either wasting money on excess premiums (in the case of over-insuring) or taking unnecessary risk (in the case of under-insuring). Most, if not all, policies contain a co-insurance clause (also known as the "Condition of Average Clause") which comes into effect when a loss occurs and it is determined that the Sum Insured is less than the true value ("Value at Risk"). The co-insurance clause basically means that if the assets are under-insured, the company is opting to carry the risk for the difference between the Value at Risk and the Sum Insured. In essence this means that the amount paid by an insurer in the event of a loss equals the actual loss multiplied by the ratio of the Sum Insured divided by the Value at Risk. A simplified example follows: Sum Insured: US$8 million Value at Risk: US$10 million Therefore the company is co-insuring the difference of US$2 million. If a loss occurs which costs US$5 million to rectify, the insurance company will only pay US$4 million and the company will have to pay the remaining US$1 million (US$8m / US$10m = 80%, US$5m * 80% = US$4m). On the other side of the coin, over-insuring is purely a waste of money. Insurance companies will never pay out more than assets are worth regardless of the how much cover you have. In other words, if you insure for 20% more than your assets are worth, the insurance company will only pay out up to the actual value of the assets, the remaining cover is redundant and the premiums on this cover could have been saved. As for how insurance valuations can assist in the settlement of a claim, simply having had a valuation done can help reduce settlement time as the insurers are less likely to suspect under-insurance and test for this in order to apply the coinsurance clause. The information gathered in the valuation process – photographs, drawings, specific machine information, etc – can also help determine exactly what was on site and provide corroborating evidence in proving the claim. The valuers can also be brought in to work with the loss adjusters and assist them in determining the current value of the loss. Regular insurance valuations are cost effective – once a valuation program has been put in place, it can help ensure that you are managing your insurance costs and cover effectively and provide support for claims. One important aspect of an insurance valuation program is determining what to value and how frequently, this is something that your valuers can help you decide and will depend on the nature of your business – how quickly costs change, how many similar locations you might operate from, whether there are long term economic factors which impact on asset utilisation, etc. While many insurance programs are similar, no two are the same – make sure your valuers are properly tailoring their services to your specific needs.

First we have to set a few ground-rules and provide a framework for our discussion. There are many different types of valuation, almost as many as there are reasons for wanting to determine a value. Before even starting the valuation, the valuer has to discuss with his client the purpose of the valuation and who will be the target audience. If the valuation is for supporting an end of year financial audit, Fair Value will most likely be the correct basis of value. If the valuation is required to assist in an acquisition of the asset, Market Value will most likely be preferred. If the valuation is required for insolvency purposes or the seller is under duress, then Forced Sale Value might be more appropriate. The key is to ensure that the basis of valuation is matched to the purpose of valuation. It also follows that you should not blindly take a valuation prepared for one purpose and try to use it for an alternative purpose, it may be completely inappropriate. For the purposes of this discussion, and unless indicated otherwise in future articles, we will assume that the basis of valuation is Market Value. Unfortunately, having decided on the basis of value doesn't solve all our problems as there are many different standards which define or describe how valuations should be performed. While it is important to select the appropriate basis of valuation, it is equally important to use the correct set of valuation standards for the situation as well. We will use the International Asset Valuation Standards as the basis for all our future discussions, again, unless indicated to the contrary. Having settled on the valuation standards and the basis of valuation, we can now look at the definition of Market Value. The International Asset Valuation Standards define Market Value as “the estimated amount for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s-length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion”. While we could devote the rest of this article and the better part of a textbook on exactly what this means, we won't. We merely provide the definition here to help set the scene for intellectual property valuation. Now, on to a few key rules which relate to intellectual property and valuation. Firstly, simply because something has cost money to develop doesn't mean that it has value – cost does not equal value. Secondly, just because something has a value to you doesn't mean that it has a market value – market value is based on the concept of value in exchange and if the asset cannot to transferred or exchanged, it has no market value as a standalone asset. That doesn't mean it has no value, it simply means that it may not have a market value if sold as a separate asset, it may need to be bundled with other assets to realise its value. This is especially true of intellectual property and other intangible assets which cannot be clearly identified, described or legally defined, they add value to a business and enhance its Market Value, but may not meet the criteria for valuation as separate assets. For intangible assets to have a market value, they must meet the following criteria. Failure to meet any one of the following means that the asset cannot have a Market Value by itself and will need to be bundled together with other assets to be ascribed a Market Value.

The asset must be able to be identified and defined. If it cannot be fully described then it cannot be transferred.There must be some physical manifestation of the asset – innovations can be defined by patents, business practices can be described in procedures or work rules, manufacturing rights can be defined in license agreements.It must be separable from the other assets with which it is used. By themselves some items have no Market Value as they are unable to be transferred to a third party.An asset must have a date of creation. All assets come into being at a specific date, this date must be known and able to be proven.An asset must generate measurable economic benefits if it is to have a market value. If we cannot reliably identify cash flows attributable to an asset, it cannot be valued by itself. This doesn't mean it won't have value as part of a bundle of assets.

Having established a few basic parameters for the valuation and the assets being valued, we define below each of the three approaches to value: The Cost Approach The Cost Approach considers the cost to reproduce or replace in new condition the assets appraised in accordance with current market prices for similar assets, with allowance for accrued depreciation arising from physical, functional and economic causes. The cost approach generally furnishes the most reliable indication of value for assets without a known market. The Market Approach The Market Approach considers prices recently paid for similar assets, with adjustments made to indicate market prices to reflect condition and utility of the appraised assets relative to the market comparative. Assets for which there is an established market may be appraised by this approach. The Income Approach The Income Approach is the conversion of expected periodic benefits of ownership into an indication of value. It is based on the principle that an informed buyer would pay no more for an asset than an amount equal to the present worth of anticipated future benefits (income) from the same or equivalent project with similar risks. In a perfect world, each of the three approaches should yield the same result. Unfortunately, as we all know, we do not live in a perfect world. Therefore, part of the valuer's skill lies in selecting the correct valuation methods for the assets being valued given the specific circumstances of the valuation. While we have only identified the three basic approaches to value in this article, it is worth noting that there are numerous methods based on these approaches, many of which combine elements of two or more of the three basic approaches. Future articles will examine each of the three approaches in detail and describe how these can be applied to intellectual property and other intangible assets.

As valuers, our role is to gauge the sentiment of a specific market at a particular point in time and draw conclusions concerning the worth of one company which operates within that market. In order to conduct a valuation of a particular company, it is necessary to obtain a complete understanding of the internal workings of the company, the specific industry sector it operates in and the wider business environment. In a nutshell, it is obtaining complete and unbiased data pertaining to these areas which valuers are most concerned with.

If we observe America about 125 years ago when the gold rush was at its height and people would register their claims at a title registration office. This process saw the beginning of Title Insurance - claimants who registered were given a guarantee that they’d have a legal right to own and develop. Nowadays, in America no real estate transaction happens without Title Insurance.

With that in mind, Paul Boldy of Boldy Associates, began to introduce title insurance into Asia 4 years ago beginning in Hong Kong and Korea. Paul works with 2 of the world’s leading title insurance firms, Land American and Stewart title. Paul discovered that Title Insurance helps speed up the transaction for any buyer in any market but is especially useful in Asia with the main markets being China, India, Korea and Thailand.

Over the recent years we have seen increasing trends towards understanding and managing potential environmental liabilities and risks associated with investments. These trends have developed alongside the implementation of new and existing requirements on property transactions and operational performance. In addition there is an increasing trend of financial institutions requiring environmental risks to be considered prior to approving financing. Documenting the environmental risk status at the time of transfer is now seen as standard practice by many investors throughout the region.

An environmental risk assessment conducted prior to completion can be beneficial to both parties. Not only does it identify the compliance status, but also indicates areas of potential concern such as contaminated land and asbestos. By identifying these issues at the onset reduces potential futures costs in litigation and remediation, improves budgeting, and allows for opportunities in risk and cost reduction and liability management.

Defined benefit plans are classified as post-employment plans where the obligation of the entity is to provide the agreed benefits to current and former employees, usually based on some benefit formulas. Under benefit plans actuarial risk and investment risk fall, in substance, on the entity. If actuarial and investment experience is worse than expected, the entity’s obligation may be increased.

Accounting for defined benefit plans is complex because actuarial assumptions are required to measure the liability and the expense and there is a possibility of actuarial gains and losses. Moreover, the benefit obligations are measured on a discounted basis because they may be settled many years after the employees render the related service.

Several countries have adopted the IFRS 3 and some of the effective dates are as follow:

Country		Standard		Effective date
International		IFRS 3		31st March 2004
Australia		AASB 3		1st January 2005
Hong Kong		HK FRS 3		1st January 2005
Malaysia		FRS 3		1st January 2006
New Zealand		NZ FRS 3		1st January 2007 1
Singapore		FRS 103		1st July 2004
US GAAP		FAS 141		1st July 2001 2

1 Early adoption is permitted only if entity complies with NZ FRS 1 on 1 January 2005.
2 FAS141 predates the introduction of IFRS 3, but contains many similar provisions. However, there are key differences in certain areas.

Financial reporting rules for acquisitions were radically changed by the introduction of the IFRS 3. The new standard requires that the Purchase Method to be applied for all acquisitions.