New Antidumping and Countervailing Duty Petitions on Temporary Steel Fencing from China
On January 14, 2025, ZND US Inc (Petitioner or ZND), domestic producer of temporary steel fencing, filed petitions with the U.S. Department of Commerce (DOC) and the U.S. International Trade Commission (ITC) seeking the imposition of antidumping duties (AD) and countervailing duties (CVD) on temporary steel fencing from China. Such structures include fencing for construction sites, security perimeters, events, and animal kennels. The scope does not include permanent steel fencing.
Under U.S. law, a domestic industry may petition the United States government to initiate an AD investigation into the pricing of an imported product to determine whether it is sold in the United States at less than fair normal value prices. For market economies (which China is not), normal value is home market or third-country price, or actual cost plus reasonable profit of the foreign producer/exporter. For deemed non-market economy China, normal value is a constructed cost plus deemed reasonable profit based on surrogate values in a market economy deemed of comparable level of economic development to China.
A domestic industry also may petition for the initiation of an investigation of alleged countervailable subsidies provided by a foreign government to producers and exporters of the subject merchandise. DOC will impose AD and/or CVD duties on subject merchandise if it determines that imports of that product are dumped and/or subsidized, and if the ITC also determines that the domestic industry is materially injured or threatened with such injury by reason of imports of the subject merchandise.
The immediate activity will occur at the ITC. In the preliminary stage, the threshold to find injury from the accused imports is low such that the ITC generally finds sufficient indicia of injury to a U.S. industry from the accused imports to continue the AD/CVD investigations. If the ITC votes to continue, then the investigation moves to DOC.
If the ITC and DOC make preliminary affirmative determinations, U.S. importers will be required to post cash deposits in the amount of the AD and/or CVD duties for all entries of the subject merchandise entered on or after the date of DOC’s preliminary determinations being published in the Federal Register. Note that if there is a surge of imports from the subject countries following the filing of the petitions, DOC can find critical circumstances for a particular subject country (or producer) and instruct U.S. Customs & Border Protection (CBP) to collect cash deposits retroactively to 90 days before the date of publication of the preliminary determination.
Following further factual investigation, verification, and briefing, DOC can change the preliminary AD/CVD rates in its final determinations. AD/CVD Orders will only issue if both the DOC and ITC make affirmative final determinations. The ITC final injury investigation is more rigorous than its preliminary injury investigation, where historically 30% or so of petitions are rejected at that stage.
Scope
Petitioner requests the following product scope for the investigation:
“The merchandise subject to this investigation is temporary steel fencing. Temporary steel fencing consists of temporary steel fence panels and temporary steel fence stands. Temporary steel fence panels, when assembled with temporary steel fence stands or other types of stands outside of the scope, with each other, or with posts, create a free-standing structure. Such structures may include, but are not limited to, fencing for construction sites, security perimeters, and events, as well as animal kennels. Temporary steel fence panels are covered by the scope regardless of whether they attach to a stand or the type of stand to which they connect.
Temporary steel fence panels have a welded frame of steel tubing and an interior consisting of chain link, steel wire mesh, or other steel materials that are not more than ten millimeters in actual diameter or width. The steel tubing may surround all edges of the temporary steel fence panel or only be attached along two parallel sides of the panel. All temporary steel fence panels with at least two framed sides are covered by the scope, regardless of the number of edges framed with steel tubing.
Temporary steel fence panels are typically between 10 and 12 feet long and six to eight feet high, though all temporary steel fence panels are covered by the scope regardless of dimension. Temporary steel fence panels may be square, rectangular, or have rounded edges, and may or may not have gates, doors, wheels, or barbed wire or other features, though all temporary steel fence panels are covered by the scope regardless of shape and other features. Temporary steel fence panels may have one or more horizontal, vertical, or diagonal reinforcement tubes made of steel welded to the inside frame, though all temporary steel fence panels are covered by the scope regardless of the existence, number, or type of reinforcement tubes attached to the panel. Temporary steel fence panels may have extensions, pins, tubes, or holes at the bottom of the panel, but all temporary steel fence panels are covered regardless of the existence of such features.
Steel fence stands are shapes made of steel that stand flat on the ground and have one or two open tubes or solid pins into which temporary steel fence panels are inserted to stand erect. The steel fence stand may be made of welded steel tubing or may be a flat steel plate with one or two tubes or pins welded onto the plate for connecting the panels.
Temporary steel fencing is covered by the scope regardless of coating, painting, or other finish. Both temporary steel fence panels and temporary steel fence stands are covered by the scope, whether imported assembled or unassembled, and whether imported together or separately.
Subject merchandise includes material matching the above description that has been finished, assembled, or packaged in a third country, including by coating, painting, assembling, attaching to, or packaging with another product, or any other finishing, assembly, or packaging operation that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the temporary steel fencing.
Temporary steel fencing is included in the scope of this investigation whether or not imported attached to, or in conjunction with, other parts and accessories such as hooks, rings, brackets, couplers, clips, connectors, handles, brackets, or latches. If temporary steel fencing is imported attached to, or in conjunction with, such non-subject merchandise, only the temporary steel fencing is included in the scope.
Merchandise covered by this investigation is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under the subheading 7308.90.9590. The HTSUS subheading set forth above is provided for convenience and U.S. Customs purposes only. The written description of the scope is dispositive.”
Foreign Producers and Exporters of Subject Merchandise
A list of foreign producers and exporters of temporary steel fencing, as identified in the petition, is provided in Attachment 1.
U.S. Importers of Subject Merchandise
A list of U.S. importers of temporary steel fencing, as identified in the petition, is provided in Attachment 2.
Alleged Margins of Dumping/Subsidization
Petitioners allege the following dumping import duty margins:
China: 405.19%
These are only estimates based on data most favorable to Petitioner. DOC generally assigns duties at the highest alleged dumping rate to foreign producers and exporters who fail to cooperate during the investigation as to answering DOC questionnaires to obtain an AD/CVD margin based on their actual situation.
Petitioner does not provide specific subsidy rates in the petition.
Potential Trade Impact
According to official U.S. import statistics, imports of the subject merchandise totaled 38,423 short tons in 2024, representing approximately 85% of all imports of temporary steel fencing into the United States.
Estimated Schedule of Investigations
1/14/2025
Petition filed
2/28/2025
ITC preliminary injury determination
4/9/2025
DOC preliminary CVD determination, if not postponed
6/13/2025
DOC preliminary CVD determination, if fully postponed
6/23/2025
DOC preliminary AD determination, if not postponed
7/12/2025
DOC preliminary AD determination, if fully postponed
12/26/2025
DOC final AD and CVD determinations, if both preliminary and final determinations fully postponed
2/9/2026
ITC final injury determination, if DOC’s determinations fully postponed
2/16/2026
AD/CVD orders published
Cross-Border Catch-Up: Norway, Denmark, and Sweden’s New Employment Laws [Podcast]
In this episode of our Cross-Border Catch-Up podcast series, Patty Shapiro (shareholder, San Diego) and Kate Thompson (associate, Stamford) discuss recent updates to employment laws in Norway, Denmark, and Sweden. Kate kicks off the episode by highlighting amendments to Norway’s Working Environment Act, which went into effect on July 1, 2024. These amendments enhance employee rights and require detailed employment contracts. Patty and Kate also review changes to Denmark’s Posting of Workers Act and the Immigration Act, which will impact foreign service providers. These changes require new documentation uploads to the Danish register by 2025 and 2026. The episode concludes with a discussion about Sweden, where the new EU Blue Card Directive, effective January 1, 2025, aims to attract highly qualified workers by offering flexible employment and residency options.
Privacy Tip #427 – Ahead of the TikTok Ban, Users are Turning to Another Chinese App with Similar Privacy Concerns – What you Should Know
TikTok users are seeking alternate platforms to share and view content as the U.S. is set to ban the popular social media app on January 19, 2025. Instead of turning to U.S.-based companies like Facebook or Instagram, users are flocking to another Chinese app called Xiaohongshu, also known as RedNote. The app, which previously had little presence in the U.S. market, shot up to the most downloaded app in Apple’s app store this week. RedNote shares similarities to Yelp, where users share recommendations, but it also allows users to post short clips, similar to the soon-to-be-banned TikTok.
While some of these TikTok users choose to switch to RedNote because of the similar short-form video format, other users appear to be purposefully choosing another Chinese-owned app as a form of protest. Either way, ordinary American and Chinese citizens can easily interact in new ways on the internet through RedNote.
However, RedNote includes many of the same privacy and national security issues that the U.S. government raised concerning TikTok. Although many users ordinarily ignore privacy policies, RedNote’s privacy policy is written in Mandarin, making it even more difficult (and in some cases impossible) for users to understand. A translation of the privacy policy indicates that RedNote collects sensitive data like a user’s IP address and browsing habits. As a Chinese-based app, RedNote is also similarly subject to the Chinese data laws that led U.S. lawmakers to ban TikTok. The TikTok ban could eventually be extended to include RedNote and other Chinese (and other foreign country) apps national security and privacy concerns exist. With other short-form video services (e.g., Instagram Reels and YouTube Shorts) provided by U.S. companies, users do not need to expose their personal data to Chinese-based companies. Additionally, using RedNote to circumvent the TikTok ban could be problematic, particularly for government workers with security clearances. RedNote is not worth these risks, and Americans should avoid downloading it.
Climate Reporting in 2025: Looking Ahead
In this alert, we reflect on recent climate reporting updates and analyze expectations for 2025 that are relevant for international businesses.
The global landscape is becoming increasingly uncertain in relation to climate reporting following litigation and a change of management at the SEC in the U.S., an expected rise of Blue State climate reporting requirements, combined with the UK and other jurisdictions’ adoption of the global standard setter ISSB’s climate reporting standards and the EU’s implementation of the Corporate Sustainability Reporting Directive (“CSRD”), amongst other initiatives. A worldwide rollout of climate change disclosure requirements has always been uneven, but these uncertainties create the potential for even greater fragmentation.
Businesses should carry out regular horizon scanning to keep abreast with the range of legislation and regulation that could impact them.
California Climate Disclosure Law 2024 Year End Developments
As we noted in detail in our prior Client Alerts, California Climate Disclosure Laws – New Developments, Old Timelines and California – First State to Enact Climate Reporting Legislation, the California climate disclosure laws (SB 253 and SB 261) were passed in October 2023 and amended by SB 219 in September 2024. SB 253 requires covered entities to disclose their Scope 1 and Scope 2 greenhouse gas (GHG) emissions by an unspecified date in 2026 for the prior fiscal year and by an unspecified date in 2027 for Scope 3 emissions, and SB 261 requires covered entities to report on their climate-related financial risks on or before January 1, 2026. California Air Resources Board (CARB) is required to promulgate regulations by July 1, 2025, to implement SB 253 (but is not required to promulgate implementing regulations for SB 261).
On December 5, 2024, CARB issued an enforcement notice to advise entities required to comply with SB 253 that CARB will exercise its enforcement discretion for the first reporting cycle in 2026 if the reporting entity demonstrates good faith efforts to comply with the requirements of SB 253. More specifically, a covered entity may disclose its Scope 1 and Scope 2 GHG emissions based on information the entity already possesses or is already collecting and CARB will not take enforcement action against any entity that makes incomplete Scope 1 and Scope 2 GHG emissions disclosures in 2026 if the entity makes a good faith effort to retain all data relevant to its GHG emissions reporting for its prior fiscal year.
To better inform CARB’s implementation of SB 253 and SB 261, on December 16, 2024, CARB issued a solicitation to gather responses from stakeholders to 13 questions. CARB’s questions cover applicability, including what should constitute “doing business in California,” how to minimize duplication of reporting efforts for entities required to report under other programs, whether to standardize certain aspects of Scope 1, 2 and 3 reporting under SB 253 and what is an appropriate timeframe within a reporting year for biennial reporting under SB 261, among others. CARB also expressly opened the solicitation to any additional feedback that should be considered by CARB in its implementation of SB 253 and SB 261. The comment period is open until February 14, 2025 and comments can be submitted to CARB here.
SEC Developments
It is no secret that the incoming Republican Administration has been skeptical of the federal government’s climate change measures, which brings further uncertainty to the SEC’s new climate change rules. To be sure, there was already uncertainty surrounding litigation in the U.S. Court of Appeals for the 8th Circuit over the rules’ validity.
The new SEC rules for many companies were scheduled to take effect for their 2025 fiscal years, resulting in disclosure in annual reports on Forms 10-K and 20-F filed in 2026. The SEC has voluntarily stayed the effectiveness of its new rules in light of the litigation. Since certain U.S. filers will be subject to the rules based on their operations this year if the stay is lifted, the SEC will undoubtedly announce a delay in the rules’ effective dates of at least one year even if the SEC is successful in the 8th Circuit.
The new Administration will have a few options. For example:
it can await the outcome of the litigation before deciding what, if anything, to do with the rules;
it could decide to leave the rules intact in light of domestic and international pressure. As the SEC clarified in adopting the rules that disclosure is triggered only by “material climate risks,” many U.S. public companies may not have to provide disclosure under the new rules;
it could modify the rules to eliminate more controversial elements but otherwise leave the rules intact; or
the new Administration could decide to vacate the rules.
The President-Elect had been critical of climate change measures in his campaign, but not all members of his team are necessarily against all climate change measures, there is international pressure to have some level of disclosure, and therefore it is challenging to make any general, sweeping prediction. We will potentially see some additional color on the President-Elect’s plans when the nominee for SEC Chairman testifies at Senate confirmation hearings.
We recommend that companies continue to prepare for the new requirements, perhaps at a slower pace. Even if the courts invalidate the SEC’s rules, or the SEC vacates them, certain states in addition to California are likely to ramp up their own requirements in order to fill the gap, and institutional investors may strengthen their proxy voting guidelines on the subject. Companies with operations in the EU may be subject to those disclosure requirements, which overlap significantly with the SEC’s requirements.
EU Unrest on Corporate Sustainability Reporting
The first reports under the CSRD will be published in 2025. There is a phased scoping of CSRD and the first reports, predominantly by EU companies that had been subject to the Non-Financial Reporting Directive, will be read with great interest to review how they have approached the CSRD’s complex double materiality assessment and the number of sustainability topics reported on, which businesses in scope of later phases of CSRD may be able to leverage before making their own reports. Challenges remain with CSRD reporting as further guidance and expectations are published on a piecemeal basis, and national transposing law of CSRD remains incomplete in a number of EU jurisdictions.
Businesses with international headquarters that may be subject to the 2028 year CSRD reporting (to be reported on in 2029) should be aware that there is a consultation expected imminently in 2025 on the global standards for such reporting. The signals sent so far suggest the potential availability of an opt-out mechanism for global businesses, enabling them to focus disclosures on the EU footprint of products and services, rather than on global operations. For further information, please see here: A Step Closer to CSRD’s Non-EU Group Reporting Standards.
There is also political turmoil in the EU that could impact climate reporting requirements in the EU; for example, the German Chancellor, Olaf Scholz, has called for a two-year delay to CSRD (despite the timeline having already been triggered). Furthermore, there have been calls for a simplification of corporate sustainability obligations for EU businesses, with the EU currently considering simplifying various existing sustainability-related regulations into a “single omnibus regulation” (“Omnibus Regulation”). This is being led by the European Commission President, Ursula von der Leyen, after criticism that the sustainability legislation is impacting the EU’s competitiveness. Proposals on the Omnibus Regulation, alongside other streamlining proposals for businesses, are expected to be proposed by the European Commission by mid-2025.
Businesses are recommended to keep careful track of CSRD developments and how it may shape their own approach to reporting or trigger the need to re-visit key areas.
UK – and Global – Momentum Towards ISSB
The UK government has been openly supportive of the International Sustainability Standards Board (“ISSB”) International Financial Reporting Standards (“IFRS”). On 18 December 2025, the UK’s Sustainability Disclosure Technical Advisory Committee published final recommendations to the UK government to endorse the IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information and IFRS S2 Climate-related Disclosures for used in the UK, with some minor amendments.
A consultation is expected in Q1 2025, with any eventual roll out of the ISSB standards likely to mirror the phased implementation of TCFD, with UK-listed companies being subject to the requirements first.
There is broader global momentum towards ISSB adoption – including in Canada, Hong Kong and Japan. With the fragmented political landscape on ESG and competing sustainability regulatory requirements, it is likely that 2025 sees the continued rise of ISSB and it increasingly establishing itself as a common global standard following it subsuming responsibility for TCFD in 2023.
Promising Results from Groundbreaking FinCrime Data Sharing Project Between Seven UK Banks and the National Crime Agency
In 2024, the National Crime Agency (the “NCA”), which is the UK’s lead agency against organized crime; human, weapon and drug trafficking; cybercrime; and economic crime, announced its “groundbreaking” data sharing partnership with seven UK banks, namely Barclays, Lloyds, Metro Bank, NatWest, Santander, Starling Bank, and TSB.[1]
This new public-private partnership (“PPP”) was the largest of its kind anywhere in the world and the initial results of the project suggest it is revolutionizing the fight against financial crime.
Joint Analysis of Transactional Data that is Indicative of Potential Criminality
The project involved the seven banks voluntarily sharing customer and transactional data with the NCA with the aim of tackling criminality and kleptocracy, and preventing the flow of “dirty money” through the UK’s financial system. AML subject matter experts from the seven banks were then seconded to the NCA to work directly alongside the NCA’s own analysts in the scrutiny of banking data that is suggestive of criminal behavior, with the dual goals of identifying bad actors that are exploiting and misusing the financial system while ensuring that legitimate customers are left alone.
Promising Results
PPPs can be vastly effective in tackling the complexities of financial crime. Principally, this is because they help to bridge gaps in intelligence and enable more holistic or collaborative analytics. In the UK’s case, the NCA has reported that since the project went live in 2024, eight new criminal networks already have been confirmed. In addition, a further three suspicious networks have been identified and referred to the NCA’s intelligence division for further examination, while new leads have been uncovered related to 10 of the agency’s largest ongoing investigations. In sum, data sharing of this sort appears to be materially augmenting the ability of law enforcement to detect and disrupt criminality. The likely result will be the reduction of the financial crime risks that all banks have to manage on a daily basis and a consequential decrease in their “compliance costs.”
Data Protection Considerations
The major concern about data sharing initiatives of this sort relates to privacy, and banks have long been wary of sharing customer data with third parties for fear of contravening applicable data protection laws. On this, Andrew Searle, the Director of the NCA’s National Economic Crime Centre, has said, “the NCA and its banking partners have designed the [project’s] data sharing principles to ensure that only account data with multiple clear indicators of economic crime is included.” [2] Additionally, the banks have included in their terms and conditions the ability to share information without notification where the purpose of doing so is the fulfillment of the legal obligation to detect and prevent financial crime. Finally, the Financial Conduct Authority (the “FCA”), which regulates the UK’s financial services industry, is observing the project and providing an additional layer of oversight that has helped appease concern regarding inadvertent violations of data protection law.
Additional Considerations
A similar initiative has now been launched in Singapore: a digital platform called “COSMIC” (the “Collaborative Sharing of Money Laundering/Terrorism Financing (ML/TF) Information and Cases”) that allows six Singaporean banks, namely Citibank, Development Bank of Singapore (DBS), HSBC, Oversea-Chinese Banking Corporation (OCBC), Standard Chartered, and United Overseas Bank, to share information on customers exhibiting multiple red flags indicators of financial crime concern.[3] The major difference between the UK project and the Singaporean project is that the former is being led by the NCA, or UK law enforcement, while the latter, COSMIC, is a purely private sector initiative.
Given the promising results of the UK project and Singapore’s launch of COSMIC, we expect that other countries will follow suit in terms of facilitating the sharing of intelligence related to suspected money laundering, terrorism financing, and proliferation financing, whether it be via the PPP model or among only private sector participants. Either way, fostering true collaboration between multiple interested parties likely is going to be crucial in the effort to stay ahead of sophisticated criminals and emergent threats.
For that reason, it is incumbent upon public sector actors, from the perspective of preventing financial crime, to actively facilitate information sharing initiatives, for example by updating laws or supervisory instruments as necessary; making use of regulatory sandboxes and pilot programs; highlighting typologies or data types that would benefit from sharing; deploying secure platforms for sharing and oversight; promoting regular dialogue between data protection and AML/CFT authorities; and more.
Finally, banks around the world should remember that, even if currently they are not able to pool data with other stakeholders, for example because of applicable data protection laws or other jurisdiction-specific fundamental rights, they still need to do everything possible to mine the volumes of customer and transactional data that they already possess and/or can obtain from their correspondents, as well as the huge quantity of open source intelligence that is readily available online, for compliance purposes. This means not just performing real-time, list-based screening, but investing in additional headcount, advanced analytical solutions and experienced external counsel to conduct proactive investigations of post-transactional data, looking for suspicious typologies, actors, networks or other activities. Ever-increasing amounts of customer and transactional data need not be overwhelming; on the contrary, if viewed as a resource rather than a burden and if leveraged appropriately, they represent a material opportunity to better detect and prevent criminal activity, and to protect legitimate consumers.
FOOTNOTES
[1]Ground breaking public private partnership launched to identify criminality using banking data
[2] Ibid.
[3] MAS Launches COSMIC Platform to Strengthen the Financial System’s Defence Against Money Laundering and Terrorism Financing
Hong Kong Residents Protected By New Deferred Enforced Departure Directive
President Joe Biden is extending Deferred Enforced Departure (DED) for 24 months through Feb. 5, 2027, for any Hong Kong resident (regardless of country of birth) currently living in the United States.
The Department of Homeland Security has been directed to:
Take measures to authorize employment authorization for the duration of the deferral; and
Consider suspending regulatory requirements for F-1 students who are Hong Kong residents.
Individuals must meet general admissibility requirements and:
Must not have voluntarily returned to Hong Kong or the PRC after Jan. 15, 2025; or
Failed to continuously reside in the United States since Jan. 15, 2025.
DED is a humanitarian administrative stay of removal and is authorized based upon the president’s constitutional authority to conduct foreign relations. DED was first authorized for Hong Kong residents in August 2021.
Instructions on how to apply for employment authorization will be published in the Federal Register. Lawmakers had sent a letter to President Biden requesting an extension for Hong Kong for four years until Jan. 20, 2029.
Skilled Artisan’s View Is Decisive in Assessing Asserted Claim Drafting Error
The Court of Appeal (CoA) of the Unified Patent Court (UPC) clarified the legal standard for correcting obvious type inaccuracies in patent claims, explaining that the view of a skilled person at the filing date is decisive when assessing whether a patent claim contains an obvious error. Alexion Pharmaceuticals, Inc. v. Samsung Bioepis NL B.V., Case No. UPC_CoA_402/2024; APL_40470/2024 (CoA Luxembourg Dec. 20, 2024) (Grabinski, Blok, Gougé, JJ.; Enderlin, Hedberg, TJJ.)
Alexion owns a European patent directed to a drug comprising an antibody that includes the “SEQ ID NO:4” amino acid sequence and that binds “complement component 5” (C5). The description refers to SEQ ID NO:4 as a sequence of 236 amino acids, and the claims also refer to SEQ ID NO:4. It is known in the state of the art that the entire amino acid sequence is unlikely to bind C5, including amino acids, forming “signal peptides.” Alexion sought provisional measures, arguing that Samsung infringed Alexion’s patent even though Samsung’s drug did not include the first 22 amino acids (i.e., the signal peptide in this case) of SEQ ID NO:4.
Originally, Alexion applied for the patent as granted but later requested to amend the claims to exclude the first 22 amino acids because of an obvious error during prosecution. The Technical Board of Appeal (TBA) of the European Patent Office (EPO) rejected the request and found that the requested amendment was not a correction of an obvious error.
The Court of First Instance similarly rejected Alexion’s request, although it found that Samsung made literal use of the patent. The Court of First Instance argued, contrary to the TBA, that the first 22 amino acids were meant to be excluded from SEQ ID NO:4 in the patent claim, and that this sequence was obviously not correctly reproduced in the view of a skilled person because otherwise the claimed drug would be unsuitable to bind to C5 (as was undisputed by the parties). However, the Court of First Instance rejected Alexion’s request for provisional measures against Samsung. The Court of First Instance clarified that it must consider not only its own claim interpretation but also the TBA’s different interpretation. Its rationale was that because it is the infringement-focused court, the Court of First Instance should, before ordering provisional measures, consider whether the TBA, based on its interpretation, would revoke the patent in parallel proceedings because of insufficient disclosure under Article 83 of the European Patent Convention. Ultimately, considering the TBA’s claim interpretation, the Court of First Instance found that the patent’s validity was not certain to the extent required to provide provisional measures. Alexion appealed.
The CoA rejected Alexion’s appeal, finding that the Court of First Instance’s claim interpretation (i.e., excluding the first 22 amino acids from the claim) was legally flawed. The CoA instead adopted the TBA’s claim interpretation and argued (on this point, not much different from the Court of First Instance) that the EPO was likely to revoke the patent. The CoA clarified that the view of a skilled person at the filing date is decisive for assessing whether a patent claim contains an obvious type error. This view was supported by Alexion’s assertions during prosecution (even if it later abandoned those assertions) and by decisions of the EPO. Such prosecution history can outweigh undisputed pleading before the Court of First Instance that the antibody including the first 22 amino acids of SEQ ID NO:4 (or including the signal peptide) would be unable to bind to C5, as long as this inability was not obvious to the skilled person. Alexion and the TBA argued during prosecution that it is generally possible for an antibody, including signal peptides, to bind to C5. The CoA thus concluded that the patent description and claims did not disclose an exclusion of the first 22 amino acids of SEQ ID NO:4, and that it would not have been obvious to a skilled person at the time of the application to correct the sequence by excluding the first 22 amino acids.
Practice Note: Potentially differing EPO decisions on claim construction should be considered when making a prognosis of patent validity in proceedings for provisional measures. The UPC sets a high bar for correcting any errors in patent claims, and a patentee should be prepared to deal with its own assertions made during prosecution.
Biden Administration Issues Sweeping Salvo of Sanctions Against the Russian Energy Sector
On January 10, 2025, in a final action to, among other things, deter Russian aggression on the international stage, the US Department of the Treasury enacted sweeping new sanctions on the Russian energy sector. Specifically, the sanctions package includes:
Determination authorizing sanctions on any person to operate or have operated in Russia’s energy sector;
Determination banning provision of US petroleum services to Russia and
Imposition of blocking sanctions against major players in the oil and gas markets, vessels in the so-called “shadow fleet,” certain traders of Russian oil, Russian maritime insurers and Russian oilfield service providers.
Below we explain these actions and how they substantially increase the sanctions risks associated with Russian energy both for and beyond the directly impacted entities, as well as the General Licenses (GLs) that accompany the sanctions.
Russian Sanctions Regime Overview
On April 15, 2021, President Biden issued Executive Order (E.O.) 14024, “Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation,” which established a national emergency by which Treasury’s Office of Foreign Asset Controls (OFAC) could impose sanctions against individuals and entities furthering specified harmful foreign activities of Russia, with a focus on national security. This national emergency is separate from that related to the crisis in Ukraine, which is addressed in E.O. 13660 and its progeny.
Section 1(a)(i) of E.O. 14024 authorizes sanctions on certain sectors of the Russian economy as determined by Treasury and the State Department. Over the past four years, OFAC has used this authority to sanction numerous sectors of the Russian economy, such as the technology and defense sectors. However, concerns about disruptions to energy prices worldwide, and particularly in relation to European allies, has caused OFAC to stop short of sanctioning the entire Russian energy sector. Until now.
Energy Sector Sanctions (Energy Sector Determination)
Under the Energy Sector Determination OFAC has authority to sanction any party that it determines to operate or to have operated in the Russian energy sector. This determination, which took effect on January 10, 2025, exposes all persons in the energy sector to sanctions risk but it does not automatically impose sanctions on all such entities. FAQ 1214.
OFAC will, in the coming days, issue regulations defining impacted activities in Russia’s oil, nuclear, electrical, thermal and renewable sectors. FAQ 1213. This definition will be similar to the energy sector definition set forth under the Ukraine/Russia-Related sanctions in 31 CFR 589.311 but includes additional language identifying specific activities and petroleum products, reflecting developments since the Department of the Treasury issued the relevant determination on that issue pursuant to E.O. 13662 in 2014.
Prohibition on Petroleum Services to Russia (Services Determination)
The Services Determination, which comes into effect on February 27, 2025, prohibits US persons from providing, directly or indirectly, most petroleum services to Russia. OFAC plans to issue regulations defining “petroleum services” to include those related to oil exploration, production, refining, storage, transportation, distribution and marketing, among others. Significantly, however, OFAC confirmed this determination does not ban all US services for maritime transportation of Russian oil, provided services comply with applicable price caps and do not involve blocked parties. FAQ 1217.
Blocking Sanctions
In addition to these sectoral sanctions determinations, OFAC imposed blocking sanctions on numerous entities by adding them to the Specially Designated Nationals (SDN) list. Blocking sanctions freeze assets or other property of the SDN, and immediately impose a blanket prohibition against US entities, directly or indirectly, transacting with or for the benefit of the assets. This prohibition extends to entities owned more than 50 percent by SDNs. Further, US law makes it a crime to “violate, attempt to violate, conspire to violate, or cause a violation of any” US sanction, and US regulators interpret this language broadly to encompass any transaction in which a non-US entity causes the sanctioned funds of an SDN to pass through the US banking system by simply transacting in US dollars.
Notable new SDNs include:
183 vessels in the so-called “shadow fleet” that has been helping Russia evade sanctions, including vessels owned by Sovcomflot that had previously been protected by GL 93, which OFAC revoked as part of this sanctions package. In December 2024, the United Kingdom Office of Sanctions Implementation (OFSI) added 20 ships to its sanctions list, bringing the number of shadow fleet vessels sanctioned by the UK to 93.
Two of Russia’s biggest oil producers and exporters, Gazprom Neft and Surgutneftegas, and numerous subsidiaries. OFSI simultaneously imposed sanctions on these producers, on the same day that OFAC and OFSI signed a Memorandum Of Understanding outlining a framework for collaboration in the sanctions space.
A network of traders of Russian oil that are either linked to the Russian government or have otherwise suspicious ownership.
More than 30 Russian oilfield services providers.
Russian maritime insurers Ingosstrakh Insurance and Alfastrakhovanie.
Secondary Sanctions Risk
The impact of these determinations and updates to the SDN list, themselves sweeping, extend even beyond the impact described above through secondary sanctions, which are measures meant to deter third parties from transacting with directly sanctioned entities. Secondary sanctions impose penalties on entities that engage in the same dealings prohibited under primary sanctions, even when there is nothing in the transaction that triggers a US nexus, such as the involvement of a US person or US dollars. These sanctions are typically triggered upon a determination that a non-US entity has “knowingly” engaged in a “significant transaction” with an SDN. Secondary sanctions can range from denial of an export license or loans from US financial institutions to designating the third party an SDN in their own right, depending on the severity of the conduct.
General Licenses
In recognition of the significant impact of this raft of sanctions, OFAC issued several GLs in connection with these measures, mostly creating wind-down periods.
GL 8L authorizes wind down activities transactions with 12 enumerated financial institutions for a “any transaction related to energy” until March 12, 2025.
GL 115A authorizes wind down activities transactions with 12 enumerated financial institutions for transactions “related to civil nuclear energy” until June 30, 2025.
GL 117 authorizes the wind down of transactions involving Gazprom Neft, Surgutneftegas, and certain additional entities until February 27, 2025.
GL 118 authorizes certain transactions related to debt or equity of, or derivative contracts involving, Gazprom Neft, Surgutneftegas, and certain additional entities until February 27, 2025.
GL 119 authorizes certain transactions involving Gazprom Neft related to diplomatic and consular mission operations outside of Russia until February 27, 2025.
GL 120 authorizes limited safety and environmental transactions and the unloading of cargo involving certain newly sanctioned persons and vessels until February 27, 2025.
GL 121 authorizes provision of petroleum services for three projects until June 28, 2025: the Caspian Pipeline Consortium, Tengizchevroil, and Sakhalin-2.
Ultimate Impact
The effectiveness of these sanctions will ultimately be determined by the Trump administration, which will be responsible for either enforcing them or rolling them back. While the incoming administration has indicated an intent to roll back many Biden-era policies, it is impossible to predict to any degree of utility if and when these particular measures will be reversed. This is a fluid area, and companies potentially impacted by the sanctions should remain on high alert. At a minimum, any company that transacts in any way with the Russian energy sector should immediately evaluate their exposure and prepare for the sanctions to be enforced in full.
GT Legal Food Talk Episode 26: Crossing Borders – Regulation of Food in the United States and Canada with Stikeman’s Sara Zborovski [Podcast]
In this episode of Legal Food Talk, host Justin Prochnow welcomes Sara Zborovski, one of his attorney counterparts from Canada with Stikeman Elliott to discuss the outlook on food regulation in 2025 for the United States and Canada.
Like a baseball or hockey game played between teams from Canada and the United States, they stand at attention while both national anthems play, discussing some of the potential political implications on food regulation in 2025, including a new administration in the United States and Justin Trudeau’s recent actions to prorogue Parliament in Canada.
They then discuss the wave of FDA guidance issues by the FDA at the end of 2024 and the start of 2025, including FDA’s revised definition of “healthy,” the removal of coconut as a food allergen, new action levels for lead in food intended for infants and children, and the proper naming of plant-based food alternatives.
This episode is a shining example of international cooperation and the best collaboration between the United States and Canada since Canadian bacon and pineapple!
New Horizons: Romania Joins Visa Waiver Program
Romania will be the 43rd country to become a member of the Visa Waiver Program (VWP). The new designation made by Secretary of Homeland Security Alejandro Mayorkas in conjunction with Secretary of State Antony Blinken will go into effect on or around March 31, 2025.
The VWP allows citizens or nationals of participating countries to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa.
The Electronic System for Travel Authorization (ESTA) online application and mobile app will be updated to include Romania.
Individuals must apply online through ESTA before coming to the United States on the VWP.
According to the secretaries, Romania met the stringent security requirements for this designation through a whole-of-government effort:
It had a visa refusal rate of under 3 percent in the last fiscal year;
It issues secure travel documents;
It extends reciprocal travel privileges to all U.S. citizens and nationals without regard to national origin, religion, ethnicity, or gender; and
It agreed to work closely with U.S. law enforcement and counterterrorism authorities.
U.S. citizens already are eligible to travel to Romania visa-free and are eligible to remain for up to 90 days for tourism or business purposes if they have a passport valid for at least three months from the date of arrival.
Romania is the fourth country to be added to the VWP by Secretary Mayorkas. It follows Croatia (2021), Israel (2023), and Qatar (2024).
Europe: Proposed UK and EU Rules on More Research Cost Re-Bundling Move Closer
In the United Kingdom, the FCA has proposed to give fund managers (including UCITS Mancos and full-scope UK AIFMs) an option to use fund assets to pay jointly for execution and research (so-called ‘bundled’ payments). The existing options of paying for research from manager funds or operating a customer-financed research payment account would remain. Final rules are expected in the first half of 2025. This follows the introduction on 1 August 2024 of a similar option for separate account managers as discussed here.
Fund managers opting for joint payments will be subject to ‘guardrails’ like those for firms managing segregated mandates. The guardrails are intended to ensure client protection by (for example) requiring appropriate disclosure to clients and seeking to ensure that research spend achieves value for money for each relevant fund client. Managers of FCA authorised retail funds opting for joint payments would need to treat the matter as a ‘significant change’ requiring both prior FCA approval, and that unitholders are given at least 60 days’ prior written notice.
One reason why firms may wish to consider using the joint payment option is so that they can obtain research from US broker-dealers who may be unable to accept unbundled payments for research.
In the European Union, changes to MIFID under the Listing Act Directive are being implemented in EU member states by 5 June 2026. These will give MiFID investment firms (incl. separate account managers) an option to make joint payments for execution and research. Conditions will apply, including an obligation to assess the quality, usability and value of research used, but the current limitation to the effect that this option does not apply to research concerning issuers with a market capitalisation of over €1 billion is being removed.
CNIPA Press Conference: Over 1 Million Invention Patents Granted in 2024
On January 15, 2025, the China State Council Information Office held a press conference with China’s National Intellectual Property Administration (CNIPA) detailing statistics of 2024. Per Hu Wenhui, deputy director of the CNIPA, in 2024, a total of 1.045 million invention patents were authorized, a year-on-year increase of 13.5%. 67,000 patent reexaminations and invalidation cases were closed. The examination cycle of invention patents was reduced to 15.5 months. 75,000 PCT international patent applications were accepted. Chinese applicants submitted 4,868 international design applications through the Hague Agreement, a year-on-year increase of 29.5%, ranking first in the world. More detailed data should be released before the end of the month including utility model authorizations.
Excerpts from the press conference follow. The full transcript is available here via social media (Chinese only).
Hu Wenhui:
By the end of 2024, my country will have 4.756 million valid invention patents, becoming the first country in the world to exceed 4 million. my country will have 14 high-value invention patents per 10,000 people, completing the expected goals of the country’s 14th Five-Year Plan ahead of schedule.
4.781 million trademarks were registered throughout the year, a year-on-year increase of 9.1%. 383,000 trademark review cases and 103,000 opposition cases were concluded. The average review period for trademark registration remained stable at 4 months, and the average review period for opposition review cases was further shortened. The qualification rate of various trademark services remained above 97%. 7,039 Madrid trademark international registration applications were received from Chinese applicants throughout the year, a year-on-year increase of 13.6%.
As of the end of 2024, the number of valid trademark registrations in my country was 47.62 million.
A total of 36 geographical indication products were recognized throughout the year, 125 geographical indications were approved for registration as collective trademarks and certification trademarks, and 8,680 business entities were approved to use geographical indication special marks.
As of the end of 2024, my country has recognized a total of 2,544 geographical indication products, approved 7,402 registrations of geographical indications as collective trademarks and certification trademarks, the total number of operators of geographical indication special marks is nearly 33,000, and the direct output value of geographical indication products exceeds 960 billion yuan, with stable growth for many consecutive years.
A total of 11,000 integrated circuit layout design registrations and certificates were issued throughout the year.
As of the end of 2024, my country had issued a total of 83,000 integrated circuit layout-design certificates.
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The number of domestic high-value invention patents reached 1.978 million, an increase of 18.8% year-on-year, and the number of invention patents belonging to strategic emerging industries reached 1.349 million, an increase of 15.7% year-on-year.
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Among China’s high-value invention patents, 130,000 have been authorized overseas at the same time, nearly doubling from the end of the 13th Five-Year Plan, involving 16,000 innovative entities, an increase of more than 6,700 from the end of the 13th Five-Year Plan. More domestic innovative entities pay more attention to using intellectual property rights to open up international markets and continuously improve their international competitiveness.
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The Draft Amendment to the Regulations on the Protection of Integrated Circuit Layout Designs mainly revised three aspects:
First, the registration and confirmation procedures for integrated circuit layout designs have been improved to strengthen the protection of intellectual property rights at the source. The application documents submitted by the applicant are required to clearly display and identify the protected content of the layout design, and failure to meet this requirement will be used as grounds for rejection and revocation. Provisions for initiating revocation procedures upon application have been added to better balance the rights and interests of all parties.
Second, we will strengthen the protection of exclusive rights for integrated circuit layout designs and effectively safeguard the legitimate rights and interests of right holders. It is clarified that the scope of exclusive rights protection is based on the submitted copies and drawings, and the originality statement of layout designs is used to explain the copies and drawings. New provisions on the principle of good faith are added, and a punitive compensation system for serious intentional infringements is introduced. Relevant provisions on pre-litigation evidence preservation are added to more effectively protect the legitimate rights and interests of right holders and reduce the cost of rights protection.
Third, promote the implementation and application of layout designs and boost the development of new quality productivity. New regulations on job creation rewards are added, stipulating that legal persons or non-legal persons should reward natural persons who create layout designs after the layout design is registered. After the layout design is implemented, the natural persons who create the layout design should be given reasonable remuneration based on the scope of its promotion and application and the economic benefits obtained. Improve the relevant regulations on the exercise of rights and transfer, licensing and pledge of exclusive rights by co-owners of layout designs to more fully stimulate enthusiasm for innovation and creation.