Interpretation of the Regulations on Prohibiting the Abuse of Intellectual Property Rights to Exclude and Restrict Competition (see attached picture) Anti Monopoly | Intellectual Property | Interpretation
In order to implement the revised Anti Monopoly Law of the People's Republic of China, strengthen and improve anti-monopoly law enforcement in the field of intellectual property, effectively prevent and stop the abuse of intellectual property to exclude and restrict competition, the State Administration for Market Regulation has revised the Regulations on Prohibiting the Abuse of Intellectual Property to Exclude and Restrict Competition. In order to better implement the newly revised "Provisions on Prohibiting the Abuse of Intellectual Property Rights and Excluding and Restricting Competition", the following interpretation is hereby made:
The need for 1. revision
Since the promulgation and implementation of the original "Regulations", it has provided a basis for anti-monopoly law enforcement in the field of intellectual property rights, achieved good implementation results, and played an active role in protecting intellectual property rights and promoting fair market competition. To implement the major decisions and deployments of the Party Central Committee and the State Council on strengthening anti-monopoly, deepening the implementation of fair competition policies, implementing the strategy of strengthening the country with intellectual property rights, and implementing the spirit of the new Anti-Monopoly Law, in order to improve and improve the anti-monopoly system rules in the field of intellectual property rights, and enhance the system It is necessary to revise the original "Regulations" for scientificity, pertinence and effectiveness.
There is an urgent need to establish a sound anti-monopoly system and rules, and maintain fair competition in the intellectual property market. On the basis of summarizing regulatory and law enforcement experience, focusing on grasping the laws and characteristics of industrial development, accelerating the improvement of China's anti-monopoly system in the field of intellectual property, is conducive to enhancing the systematic, scientific, and effective rules of China's anti-monopoly system, better responding to the adverse effects of monopolistic behavior in the field of intellectual property on China's industrial development, and maintaining a fair competition market order.
The urgent need to accelerate the construction of a unified national market and promote innovative development of China's economy. Establishing and improving the anti-monopoly system and rules in the field of intellectual property is conducive to providing clear and clear behavioral guidance for the vast number of business entities, enhancing the stability and transparency of anti-monopoly supervision, and providing high-quality institutional supply and legal protection for the construction of a unified national market; It is conducive to better protecting intellectual property rights, protecting and promoting fair market competition, fully leveraging the fundamental role of the market in allocating innovative factor resources, and improving economic operational efficiency.
There is an urgent need to better serve the high-level opening up to the outside world and enhance the international competitiveness of China's industries. Intellectual property is a strategic resource for national development and a core element of international competitiveness. Entering a new stage of development, starting from the stage and characteristics of China's industrial development, as well as the practical needs of participating in international competition, it is beneficial to improve the antitrust system rules in the field of intellectual property rights, which is conducive to better participation in international competition governance; It is conducive to cracking down on monopolistic behavior in the field of intellectual property, supporting Chinese enterprises to deeply participate in international competition, and promoting the construction of new advantages in international competition.
2. Revision Process
The General Administration of Market Supervision fully implements the work requirements of scientific legislation, democratic legislation, legislation in accordance with the law, and open-door legislation, and takes improving the quality of legislation as the key to solidly promote the revision work.
Deepen theoretical research. Entrust experts from the Expert Consultation Group of the State Council Anti Monopoly Commission to carry out legislative consultation projects on the revision of the Regulations and strengthen legislative research. Adhere to the characteristics of China's national conditions and economic development stages, and fully absorb and draw on mature domestic and foreign experiences through case studies, comparative studies, and empirical research, laying a solid theoretical foundation for the revision work.
Systematically summarize practical issues. Focusing on key areas such as wireless communication, we have organized multiple industry and enterprise symposiums, conducted research in relevant enterprises and departments, and conducted in-depth investigations and research. Focusing on key issues related to unfair high prices, patent consortia, and standard essential patents in the Regulations, we will deeply summarize practical experience, propose regulatory ideas and measures, and lay a solid practical foundation for the revision work.
Widely listen to opinions and suggestions. During the revision process, opinions and suggestions were widely solicited from provincial market supervision departments, social organizations, research institutions, and experts and scholars. After the revised draft was formed, opinions were publicly solicited from the Chinese government's legal information website and the official website of the State Administration from June 27 to July 27, 2022, and opinions were sought from relevant departments such as member units of the State Council's Anti Monopoly Commission. From November 2022 to March 2023, three legislative symposiums and seminars were held to further listen to the opinions and suggestions of relevant departments, experts and scholars, fully absorb the opinions of all parties, consolidate consensus, and ensure that the Regulations are more reasonable, scientific, and complete.
3. revision ideas
The revision work adheres to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, comprehensively studies and implements the spirit of the Party's 20th National Congress, focuses on strengthening intellectual property protection, strengthening anti-monopoly, and deepening the implementation of fair competition policies, and strives to improve the anti-monopoly system and rules To improve the level of anti-monopoly supervision in the field of intellectual property, the following revision ideas are mainly followed:
Fully implement the system and spirit of the new Anti Monopoly Law. Deeply understand and grasp the legislative spirit and latest institutional requirements of the new law to encourage innovation, implement general systems, and ensure the connection with supporting regulations such as the Anti Monopoly Agreement, while combining the characteristics and laws of intellectual property, refine and improve special anti-monopoly rules in the field of intellectual property, and enhance the applicability, pertinence, and operability of the system.
Adhere to the institutional concept of "balancing protection and opposition". Pay attention to better grasping the balance between protecting intellectual property rights and anti-monopoly, promoting innovation and fair competition, correctly handling the relationship between efficiency and fairness, vitality and order, current and future, highlighting the importance of protecting intellectual property rights in fair competition, improving and perfecting the anti-monopoly system rules in the field of intellectual property rights, and providing fair, transparent, and predictable behavioral guidance for the vast number of business entities.
Strengthen the regulation and guidance of market competition behavior. Adapt to the phased characteristics and development trends of China's industry, actively respond to prominent problems in market competition in the field of intellectual property, formulate targeted regulatory measures, regulate and guide business models and competitive behavior towards a more fair and reasonable direction, promote market fair competition and industrial innovation and development.
Main contents of 4. revision
There are 19 articles in the current "Regulations", 1 article is retained, 18 articles are revised, 14 articles are added, and 33 articles are revised. The main modifications include:
Fully implement the institutional requirements of the new Anti Monopoly Law. One is to implement the legislative purpose of encouraging innovation in the new Anti Monopoly Law, and to increase the consideration factors for determining market dominance in combination with the Anti Monopoly Guidelines of the State Council Anti Monopoly Commission on the Field of Intellectual Property; Increase the legitimate considerations for operators to exercise intellectual property rights. The second is to improve the types of monopoly agreements in the field of intellectual property, and add provisions stating that "operators shall not use the exercise of intellectual property rights to organize other operators to reach monopoly agreements or provide substantive assistance for other operators to reach monopoly agreements.". Revise the safe harbor rules and ensure proper alignment with the guidelines. The third is to adjust the legal liability provisions in accordance with the new Anti Monopoly Law, clarifying the handling of illegal situations by anti-monopoly law enforcement agencies and the disciplinary connection provisions for clues related to public officials suspected of violating their duties.
Establish a sound antitrust system in the field of intellectual property rights. One is to increase regulations on unfair high prices. Refine the recognition rules and considerations of legitimate reasons for other behaviors that abuse market dominance. The second is to add relevant regulations on concentration of operators in the field of intellectual property, clarify the requirements for declaration of concentration of operators related to intellectual property, and specify the specific considerations and additional restrictive conditions in the examination. The third is to clarify the relationship with general rules such as the Anti Monopoly Law, the Regulations on Prohibiting Monopoly Agreements, the Regulations on Prohibiting the Abuse of Market Dominant Position, and the Regulations on the Examination of Business Concentration, and to add triggering clauses for the application of procedures and rules.
Improve antitrust rules in key areas such as standard essential patents. One is to modify and improve specific provisions on monopoly agreements and abuse of market dominance in patent consortia. The second is to clarify the monopolistic agreements in the formulation and implementation of standards, and improve the provisions on the abuse of market dominance in the necessary patent licensing of standards. Among them, in response to the strong reflection in the field of standard essential patents on the abuse of injunction remedies by rights holders, special regulatory provisions have been added to clarify specific applicable requirements. The third is to increase anti-monopoly provisions related to copyright and related rights.
5. main features
The regulations mainly have the following three characteristics:
Balancing strengthening antitrust regulation and protecting intellectual property rights. Intellectual property rights and antitrust systems have a consistent purpose in protecting fair competition and promoting innovative development. However, intellectual property rights should be exercised within a lawful and reasonable scope. Once they exceed reasonable limits, it will cause harm to fair competition and innovation in the market. The Regulations fully embody the institutional concept of "balancing protection and opposition". By clarifying the boundaries between private rights and public welfare protection, industry and competition regulation, they provide legitimate and effective constraints on the exercise of intellectual property rights, prevent and stop the abuse of intellectual property rights to exclude and restrict competition, and promote the orderly flow and efficient allocation of market resources and innovative elements.
Balancing the maintenance of fair competition and promoting innovative development. The ultimate goal of protecting fair competition in the market is to promote innovative development. Strengthening antitrust supervision and law enforcement in the field of intellectual property requires the correct handling of the relationship between development and regulation, efficiency and fairness, vitality and order. The Regulations focus on improving the stability, pertinence, and foresight of the anti-monopoly system in the field of intellectual property, providing more specific and comprehensive rule basis for anti-monopoly supervision and law enforcement, effectively guiding and regulating market competition behavior in the field of intellectual property, maintaining fair competition market order, and creating a market environment conducive to innovative development.
Balancing the development interests of both intellectual property rights holders and implementers. Both intellectual property rights holders and implementers are the main drivers of innovation and development. Strengthening antitrust supervision and law enforcement in the field of intellectual property requires balancing the development interests of intellectual property rights holders and implementers. This not only helps rights holders realize their legitimate rights and interests, but also promotes implementers to achieve development goals and obtain reasonable benefits. In the design of institutional rules, the Regulations adhere to the principle of balancing the interests of rights holders and implementers, taking into account the present and the long-term, and strive to provide institutional guarantees for all types of business entities to participate in market competition fairly, fully stimulating the innovative vitality of intellectual property rights holders and implementers.
