In order to encourage innovation, maintain a fair and competitive market order in the field of intellectual property, and help the construction of a unified national market and the construction of a nation with strong intellectual property, combined with the new situation, new circumstances and new issues of anti-monopoly supervision and enforcement in recent years, the General Administration of Market Supervision has revised and launched the "Regulations on Prohibition of Abuse of Intellectual Property Rights to Exclude and Restrict Competition", which will come into force on August 1, 2023.
The Regulation on Prohibition of Abuse of Intellectual Property Rights to Exclude and Restrict Competition focuses on balancing intellectual property protection and maintenance of fair competition order, focusing on the important and difficult anti-monopoly issues in the field of intellectual property, strengthening the guidance of the rules, and promoting fair competition and innovation development. Compared with the provisions on "Prohibition of Abuse of Intellectual Property Rights to Exclude and Restrict Competition issued in 2015", the new regulation have been revised and improved in the following aspects -
First, it expands the meaning of "abuse of intellectual property rights to exclude and restrict competition". The three types of monopolistic behaviors i.e. (1) use of intellectual property to reach monopoly agreements, (2) abuse of dominant market position, (3) the implementation of a concentration of business operators with or may have the effect of excluding or limiting competition are included in the scope of the regulation.
Second, it refines the rules of recognizing monopoly through use of intellectual property. According to the revised anti-monopoly law in 2022, taking into account the characteristics of intellectual property and the actual supervision of authorities, it strengthens and refines the rules on guidance and operability in the relevant market definition, the determination of market dominance and monopolistic acts, the consideration factors of operator concentration and the specific types of additional restrictive conditions.
Third, it strengthens the regulation on typical and special monopolistic acts in the field of intellectual property. For example, to improve the provisions of patent pools, to prohibit patent pools and patent pool members from using patent pools to engage in monopolistic behavior; to strengthen the regulation of monopolistic behavior in the process of patent standard development and implementation, and to prohibit operators with dominant market position from using standard-essential patents to implement "patent hostage".
Next, the General Administration of Market Supervision will take the launch of the "Regulations on Prohibition of Abuse of Intellectual Property Rights to Exclude and Restrict Competition" as an opportunity to coordinate the protection of intellectual property rights, anti-monopoly and other work, promote the independent and orderly flow of innovation factors, efficient allocation, and effectively maintain a fair and competitive market order.