A judicial and academic debate on standard essential patents (SEPs) in China has recently arisen. The issuance of anti-suit injunctions (ASIs) by Chinese courts in a relatively short period of time (between 2019 and 2020) and the ensuing TRIPS/WTO dispute between the EU and China over the TRIPS compatibility of such ASIs, exemplify such debate.
China has been a WTO member since 2001, and obviously needs to comply with TRIPS obligations on patent and other intellectual (IP) rights. The country is well aware of this, and in general even supportive of a functioning patent system, if only because Chinese businesses are currently those who apply the most at patent offices around the world. Numbers showing the pace of PCT and EPO patent applications filed by Chinese entities, especially in the ICT sector, are quite telling.
But Chinese authorities are also aware of the need to balance patent rights with the interests of other non-right holding stakeholders, particularly in the ICT sector. The SEP context provides a perfect example where such balance is needed, especially to curb possible anti-competitive behaviours by patent owners. Indeed, in June 2023, China’s antitrust authority, the State Administration for Market Regulation (‘SAMR’), published the draft Anti-Monopoly Guidelines in the Field of Standard Essential Patents (‘Guidelines’) – a document which aims to provide a comprehensive framework to regulate the SEPs landscape. Read more