Provisions of Prohibiting Abusing Intellectual Property Rights to Exclude or Restrict Competition
ISSUING AUTHORITY:
The State Administration for Market Regulation
DATE OF ISSUANCE:
June 25, 2023
EFFECTIVE DATE:
August 1, 2023
In order to implement the revised Anti-Monopoly Law of the People's Republic of China (the “New Anti-Monopoly Law”), strengthen and improve the anti-monopoly law enforcement work in the field of intellectual property rights, and effectively prevent and stop abusing intellectual property rights to exclude and restrict competition, the State Administration for Market Regulation promulgated the Provisions on Prohibiting Abusing Intellectual Property Rights to Exclude and Restrict Competition (the “Provisions”) on June 25, 2023, which became effective on August 1, 2023.
1. The Main Content of the Provisions
The current regulations have 19 articles, of which, one is retained, 18 are revised, and 14 are added, resulting in a new total of 33 articles. The main changes include:
(1) Fully Implement the System Requirements of the New Anti-Monopoly Law
First, implement the legislative purpose of the new Anti-Monopoly Law to encourage innovation, and combine with the Anti-Monopoly Guide of the Anti-Monopoly Commission of the State Council in the Field of Intellectual Property Rights (hereinafter referred to as the Guide) to increase the consideration factors to determine the dominant market position (Article 8); the consideration factor that a business operator has legitimate reasons for exercising intellectual property rights shall be added (Article 20);
Second, improve the types of monopoly agreements in the field of intellectual property rights, and add the provision that "a business operator shall not use the way of exercising intellectual property rights to organize other business operators to reach monopoly agreements or provide substantive assistance for other business operators to reach monopoly agreements" (Article 6). Revise the safe harbor rules and align them with the Guidelines (Article 7);
Third, adjust the legal liability provisions in accordance with the new Anti-monopoly Law, and clarify the handling of the illegal situation of the staff of the anti-monopoly law enforcement agencies and the connection provisions of the conduct of the discipline of public officials suspected of illegal crimes (Articles 25 to 31).
(2) Improve the Anti-monopoly System in the Field of Intellectual Property Rights
First, add provisions on unfair high prices (Article 9). Specify other rules to determine the abuse of dominant market position (Articles 10 to 14) and considerations for justification (Article 20);
Second, add relevant provisions on concentration of business operators in the field of intellectual property, clarify the reporting requirements for concentration of business operators involving intellectual property rights (Article 15), and stipulate the considerations in reviewing and the specific circumstances of additional restrictive conditions (Article 16);
Third, clarify the relationship with the Anti-Monopoly Law, Provisions on the Prohibition of Monopoly Agreements, Provisions on the Prohibition of Abusing Dominant Market Position, Provisions on the Review of Concentration of Business Operators and other general rules, and add provisions for the application of procedures and rules (Articles 24 and 32).
(3) Improve Anti-monopoly Rules in Key Areas Such as Standard-essential Patents
First, amend and improve the specific provisions on monopoly agreements and abuse of dominant market position in patent pooling (Article 17);
Second, clarify the situation of monopoly agreements in standard formulation and implementation, and improve the provisions on abusing dominant market positions in standard essential patent licensing (Article 18 and Article 19). A special regulation clause is added to clarify the specific application requirements (Article 19, paragraph 1, Item 3) in viewing the problem of the right holder's abusing injunctive relief in the standard-essential patent field.
Third, add anti-monopoly provisions concerning copyright and related rights (Article 21).
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