Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrain Competition (April 2015)

source：　 date：2015-05-01　 author：

The State Administration for Industry and Commerce ("SAIC") has released the Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrain Competition (the "Provisions") with effect from August 1, 2015.

 

The Provisions fill a gap in the legislations of China governing the anti-monopoly issues where IP rights are concerned, and are aimed at balancing the interests of owners of IP rights and related parties to encourage innovation and fair competition. It is observed that there has been increasingly fierce conflicts between the exclusivity of IP rights and the anti-monopoly rules, and thus the anti-monopoly law enforcement authorities have been paying more and more attention to the acts of excluding or restraining competition by abusing IP rights. The noticeable cases of Huawei vs. IDC re license of essential patents of standards, and the big fines imposed by NDRC on Qualcomm for its monopoly acts, are typical cases in this regard.

The Provisions enlists the acts of abusing IP rights, including monopoly agreement and abusing dominant market position, such as restraints on transactions, tied sale, unreasonable restrictive conditions in transactions, differential treatment to deal counterparts under the same conditions. Meanwhile, the Provisions make elaboration and regulation for the first time in the legislation of China on some important anti-monopoly theories and principles, such as the safe harbor principle, the principle of necessary facilities and essential patents of standards.