Release Date: 29 June 2023
Effective Date: 1 August 2023
The Provisions on Prohibiting Abuses of Intellectual Property Rights to Exclude or Restrict Competition (‘Provisions’), revised and published by the SAMR, will come into effect on 1 August 2023.
The Provisions have been revised and improved to take account of the developments that have taken place in antitrust regulatory enforcement in recent years. Building on the original Provisions formulated in 2015, they focus on three aspects: first, they broaden the scope of “abuses of intellectual property rights to exclude or restrict competition” to encompass three primary forms of monopolistic practices - monopoly agreements, abuse of dominant market position, and concentration of undertakings. Secondly, the Provisions enhance the rules for identifying monopolistic practices related to the exercise of intellectual property rights. Drawing on the revised Anti-Monopoly Law in 2022, and considering the unique characteristics of intellectual property and recent regulatory practices, the Provisions provide clarity on the factors and additional restrictive conditions for identifying relevant markets, dominant market positions, relevant monopolistic practices, and the review of undertakings' concentrations. Thirdly, the Provisions strengthen the regulation of typical and special monopolistic practices involving intellectual property. For example, they explicitly prohibit a patent pool entity or its members from engaging in monopolistic practices through exploitation of the patent pool. Additionally, undertakings in a dominant market position are prohibited from leveraging standard essential patents to engage in “patent holdup” and similar activities.
Source: State Administration for Market Regulation Rouse