Recently, the Office of Anti-monopoly Committee of the State Council has issued the Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights (Draft for Comment) (the "Draft for Comment") for public comments before April 21, 2017.
The Draft for Comment, organized into five chapters with a total of 27 articles, covers the general issues, monopoly agreements relating to intellectual property rights ("IPRs"), abuse of dominant market position relating to IPRs, concentration of undertakings relating to IPRs and other circumstances involving IPRs. According to the Draft for Comment, agreements involving IPRs include circumstances on joint research and development, cross-licensing, exclusive grant-back, no-challenge clause and formulation of standards etc. Besides, the Draft for Comment includes safe harbor provisions, clearly stating that where operators concerned fall under any of three conditions, one of which reads as "operators which compete against each other possess an aggregate market share of no more than 20 percent in the relevant market", an agreement involving IPRs reached among them is deemed as not monopolistic in most cases, unless there is evidence to the contrary.