The Provisions On Prohibition Of The Abuse Of Intellectual Property Rights To Eliminate Or Restrict Competition

Original Language Title: 关于禁止滥用知识产权排除、限制竞争行为的规定

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201506/20150600399694.shtml

  Circular of the State administration for industry and commerce, the 74th Convention on the prohibition of the abuse of intellectual property rights to eliminate or restrict competition Act regulations have been considered and passed by State administration for industry and Commerce Council meetings, are hereby promulgated and take effect on August 1, 2015.



Zhang Mao, the Secretary on April 7, 2015

On the prohibition of the abuse of intellectual property rights act of eliminating or restricting competition (April 7, 2015, the State administration for industry and Commerce announced, 74th), first in order to protect fair competition in the market and stimulate innovation, stop the operator acts of abuse of intellectual property rights to eliminate or restrict competition, in accordance with the People's Republic of China anti-monopoly law (hereinafter referred to as the anti-monopoly law), these provisions are formulated.

Second antitrust and intellectual property protection have a common goal, namely, to promote competition and innovation, improving economic efficiency, protecting consumer interests and public interests.

Operator in accordance with the laws, administrative rules and regulations relating to intellectual property of the exercise of intellectual property rights, of the non-application of the antitrust laws, but operators abuse of intellectual property rights, of eliminating or restricting competition, application of the anti-monopoly law.

Article abuse of intellectual property rights in these rules to eliminate or restrict competition, refers to violation of the Antimonopoly Act exercise of intellectual property rights, monopolistic agreements, abuse of dominant market positions, such as monopoly (except for acts of price monopoly). Relevant market in these rules, including the relevant product market and the relevant geographic market, according to the anti-monopoly law and the Antimonopoly Committee guidance on the definition of relevant market definition, taking into account the influence of factors such as intellectual property rights, innovation. In relation to intellectual property licensing in antitrust enforcement, relevant product market can be a market, can also be a product that contains specific intellectual property market.

Related technology market is defined by the exercise of intellectual property rights related to the technology and can be substituted for market posed by competition between competing technologies. Fourth business operators shall not use a form of intellectual property rights reached between the anti-monopoly law of 13th, 14th, monopoly agreements prohibited under article.

However, the operator can prove that the conclusion of the agreement in line with the Antimonopoly Act except as provided in article 15th. Fifth article operators exercise intellectual property of behavior has following case one of of, can not was finds for anti-monopoly method 13th article first paragraph sixth items and 14th article third items by ban of monopoly agreement, but has instead of evidence proved the agreement has excluded, and limit competition effect of except: (a) has competition relationship of operators in by its behavior effect of related market Shang of market share total not over 20%,

Or exists on the relevant market by at least four other independently controlled at a reasonable cost alternative technologies (ii) operators and trading partners in the relevant market share does not exceed 30%, or in the relevant market, there are at least two other independent control can be obtained at a reasonable cost alternative technologies.

Sixth with dominant market operators shall not in the exercise of intellectual property rights in the process of abuse of a dominant position, to eliminate or restrict competition. Dominant market position according to the anti-monopoly law of 18th and 19th of the regulations identify and presumption.

Operators can own the intellectual property rights constitute one of the identified its market dominance, but the presumption cannot be based only on the operator owns the intellectual property rights of its dominant market position in the relevant market.

Article has the dominant market operators without just cause, shall not constitute production and business activities of essential facilities in its intellectual property rights cases, refused to license on reasonable terms to use the intellectual property of other operators, eliminating or restricting competition.

Finds Qian paragraph behavior need while consider following factors: (a) the items intellectual property in related market Shang cannot was reasonable alternative, for other operators participation related market of competition by required; (ii) refused to license the intellectual property will will led to related market Shang of competition or innovation by adverse effect, damage consumers interests or public interests; (three) license the intellectual property on the operators not caused not reasonable of damage.

Article has the dominant market operators without good reason shall not in the exercise of intellectual property rights in the course of the following qualifying transaction, eliminating or restricting competition: (a) restricted trading partners to trade exclusively with (ii) restricted trading partners to trade exclusively with the specified operator. Nineth article has market dominated status of operators no due reason, shall not in exercise intellectual property of process in the, implementation while meet following conditions of tying behavior, excluded, and limit competition: (a) against trading practices, and consumption habits, or ignored commodity of function, will different commodity forced bundled sales or combination sales; (ii) implementation tying behavior makes the operators will its in tying products market of dominated status extends to was tying products market, excluded, and

Limit other operators in the tying product or competition in the market by tying.

Tenth article has market dominated status of operators no due reason, shall not in exercise intellectual property of process in the, implementation following additional not reasonable limit conditions of behavior, excluded, and limit competition: (a) requirements trading relative people will its improved of technology for exclusive sex of back Award; (ii) ban trading relative people on its intellectual property of effectiveness proposed questioned; (three) limit trading relative people in license agreement term expires Hou, in not violations intellectual property of situation Xia using competitive of commodity or technology;

(D) the term of protection has expired or is found to be invalid intellectual property rights continue to exercise rights; (e) the prohibition of trading transactions with third parties; (vi) on the conditions of trading partners to impose unreasonable restrictions.

11th operators with dominant market status without good reason shall not in the exercise of intellectual property rights in the process, trading partners to discriminatory treatment of the same conditions, to eliminate or restrict competition.

12th operator shall not in the exercise of intellectual property rights in the process of eliminating or restricting competition in the exploitation of patent pools. Patent pool members do not use patent pool Exchange yields, market segmentation and other sensitive information about the competition, the anti-monopoly law of 13th, 14th, monopoly agreements prohibited under article.

However, the operator can prove that the conclusion of the agreement in line with the Antimonopoly Act except as provided in article 15th.

Has market dominated status of patent Associates management organization no due reason, shall not using patent Associates implementation following abuse market dominated status of behavior, excluded, and limit competition: (a) limit Associates members in associates zhiwai as independent license people license patent; (ii) limit Associates members or was license people independent or and third party joint development and Associates patent phase competition of technology; (three) forced was license people will its improved or development of technology exclusive sex to back award to patent Associates management organization or associates members;

(D) prohibit the licensee questioned the effectiveness of joint patent; (v) the conditions associated with the same members of the same relevant market or in differential treatment in terms of the licensee; (vi) of the State administration for industry and Commerce found that other acts of abuse of a dominant market position. Patent pools in these rules refers to two or more patentees through some form of its own joint patent license to any third party agreements.

Specifically joint ventures can be established for this purpose in the form, can also be entrusted to a partner or an independent third party to manage.

13th operator shall not in the exercise of intellectual property rights in the process of using a standard (including the compulsory requirements of the technical norms of the State, the same below) developed and implemented to eliminate or restrict competition.

Operators with dominant market status without just cause, not in the standard developed and implemented to eliminate or restrict competition in the implementation process: (a) participation in the standard-setting process, deliberately omitting to standards-setting organizations to disclose information about their rights, and expressly waive their rights, but in a standard related to the patent but patent advocate the implementation of the standard.

(B) after its patent standards essential patents, contrary to fair, reasonable and non-discriminatory principles, implementation of the refusal of permission by, tying product or attach other unreasonable transactions at the trading conditions of eliminating or restricting competition.

Standards essential patents in these rules refers to the implementation of the standards essential patents.

Article 14th alleged abuse of intellectual property rights to eliminate or restrict competition, industrial and commercial administrative organs in accordance with the anti-monopoly law and the Administration for industry and Commerce investigated and dealt with monopoly agreements, abuse of dominant market position provisions on the procedures for the investigation of the case.

15th article analysis finds operators suspected abuse intellectual property excluded, and limit competition behavior, can take following steps: (a) determine operators exercise intellectual property behavior of nature and performance form; (ii) determine exercise intellectual property of operators Zhijian mutual relationship of nature; (three) defined exercise intellectual property by involved of related market; (four) finds exercise intellectual property of operators of market status; (five) analysis operators exercise intellectual property of behavior on related market competition of effect. Analysis finds that the operator needs to consider the nature of the relationship between characteristics of the exercise of intellectual property rights act itself. In cases involving intellectual property licensing, which originally had a competition between operators is in the licensing contract transactions, and licensor and licensee's use of the products of intellectual property on the market is competitive.

However, if at the conclusion of the license agreement, not competitive relationship between the parties and competition relationship arises only after the conclusion of the agreement is still not considered to be agreements between competitors, unless substantive changes to the original agreement.

16th article analysis finds operators exercise intellectual property of behavior on competition of effect, should consider following factors: (a) operators and trading relative people of market status; (ii) related market of market concentrated degrees; (three) into related market of difficult easy degree; (four) industry practices and industry of development stage; (five) in production, and regional, and consumers, aspects for limit of time and effectiveness range; (six) on promote innovation and technology promotion of effect; (seven) operators of innovation capacity and technology changes of speed; (VIII) and found the exercise of intellectual property rights related to the effects on competition of other factors.
Article 17th abuse of intellectual property rights to eliminate or restrict competition in the antitrust agreement from the Administration for industry and commerce shall be ordered to desist from the illegal act, confiscate the illegal income, and annual sales of more than 1% # 10% at the following fine; the monopoly agreement has not yet been implemented, and may be fined not more than 500,000 yuan.

Operator abuse of intellectual property rights to eliminate or restrict competition act constitutes an abuse of a dominant market position, by the administration of industry and commerce shall be ordered to desist from the illegal act, confiscate the illegal income, and annual sales of more than 1% # 10% at the following fine.

When the industrial and commercial administrative organs to determine the specific amount, should take into account the nature of the offence, circumstances, extent, duration and other factors.

The 18th by the State administration for industry and commerce is responsible for the interpretation of these provisions. The 19th article of the provisions come into force on August 1, 2015.