Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition
Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition
Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition
Order of the State Administration for Market Regulation No.79
June 25, 2023
(Promulgated by Order of the State Administration for Market Regulation No.79 on June 25, 2023, and effective as of August 1, 2023)
Article 1 In order to prevent and curb the abuse of intellectual property rights to exclude or restrict competition, the Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition (hereinafter referred to as the "Provisions") are formulated in accordance with the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-Monopoly Law").
Article 2 Anti-monopoly and intellectual property rights protection share a common goal, namely promoting competition and innovation, improving economic operation efficiency, and safeguarding consumer and public interests.
Undertakings shall exercise intellectual property rights in accordance with the laws and administrative regulations concerning intellectual property rights, provided that they shall not abuse the intellectual property rights to exclude or restrict competition.
Article 3 For the purpose of the Provisions, "abuse of intellectual property rights to exclude or restrict competition" refers to undertakings violating the Anti-monopoly Law when exercising their intellectual property rights, concluding monopoly agreements, abusing dominant market positions, and implementing concentrations of undertakings and other monopolistic behaviors that have or may have the effect of excluding or restricting market competition.
Article 4 The State Administration for Market Regulation (hereinafter referred to as the "SAMR") shall, in accordance with Paragraph 1 of Article 13 of the Anti-Monopoly Law, be responsible for the unified anti-monopoly law enforcement against the abuse of intellectual property rights to exclude or restrict competition.
Subject to Paragraph 2 of Article 13 of the Anti-Monopoly Law, the SAMR authorizes the market regulatory authorities of all provinces, autonomous regions, and municipalities directly under the Central Government (hereinafter referred to as the "provincial market regulatory authorities") to be responsible for the anti-monopoly law enforcement against monopoly agreements, abuse of a dominant market position, and abuse of intellectual property rights to exclude or restrict competition within their respective administrative regions.
For the purpose of the Provisions, the anti-monopoly law enforcement authorities shall include the SAMR and provincial market regulatory authorities.
Article 5 For the purpose of the Provisions, "relevant markets", including the relevant commodity markets and the relevant geographic markets, are defined pursuant to the Anti-Monopoly Law and the Guidelines of the Anti-monopoly Commission under the State Council concerning the Definition of Relevant Markets, with the effects of intellectual property rights, innovation and other factors taken into consideration. In relation to intellectual property licensing and other anti-monopoly enforcement, the relevant commodity markets may be either technology markets or product markets containing specific intellectual property rights. "Relevant technology markets" refer to the markets formed through the competition between technologies involved in the exercise of intellectual property rights and alternative similar technologies.
Article 6 Undertakings shall not, by way of exercising intellectual property rights, conclude among themselves any monopoly agreement prohibited in Article 17 and Paragraph 1 of Article 18 of the Anti-Monopoly Law.
Undertakings shall not, by way of exercising intellectual property rights, organize other undertakings to conclude a monopoly agreement or provide substantial assistance for other undertakings to conclude a monopoly agreement.
Where undertakings can prove that the agreement concluded falls under the circumstances as prescribed in Article 20 of the Anti-Monopoly Law, Paragraphs 1 and 2 shall not apply.
Article 7 Where an undertaking concludes an agreement as prescribed in Items 1 and 2, Paragraph 1 of Article 18 of the Anti-Monopoly Law with a transaction counterpart by way of exercising intellectual property rights, and the undertaking can prove that it does not have the effect of excluding or restricting competition, it shall not be prohibited.
Where an undertaking concludes an agreement with a transaction counterpart by way of exercising intellectual property rights, and the undertaking can prove that the share in the relevant market of the undertaking participating in the agreement is lower than the standard prescribed by the SAMR and meets other conditions prescribed by the SAMR, it is not prohibited.
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Order of the State Administration for Market Regulation No.79
June 25, 2023
(Promulgated by Order of the State Administration for Market Regulation No.79 on June 25, 2023, and effective as of August 1, 2023)
Article 1 In order to prevent and curb the abuse of intellectual property rights to exclude or restrict competition, the Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition (hereinafter referred to as the "Provisions") are formulated in accordance with the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-Monopoly Law").
Article 2 Anti-monopoly and intellectual property rights protection share a common goal, namely promoting competition and innovation, improving economic operation efficiency, and safeguarding consumer and public interests.
Undertakings shall exercise intellectual property rights in accordance with the laws and administrative regulations concerning intellectual property rights, provided that they shall not abuse the intellectual property rights to exclude or restrict competition.
Article 3 For the purpose of the Provisions, "abuse of intellectual property rights to exclude or restrict competition" refers to undertakings violating the Anti-monopoly Law when exercising their intellectual property rights, concluding monopoly agreements, abusing dominant market positions, and implementing concentrations of undertakings and other monopolistic behaviors that have or may have the effect of excluding or restricting market competition.
Article 4 The State Administration for Market Regulation (hereinafter referred to as the "SAMR") shall, in accordance with Paragraph 1 of Article 13 of the Anti-Monopoly Law, be responsible for the unified anti-monopoly law enforcement against the abuse of intellectual property rights to exclude or restrict competition.
Subject to Paragraph 2 of Article 13 of the Anti-Monopoly Law, the SAMR authorizes the market regulatory authorities of all provinces, autonomous regions, and municipalities directly under the Central Government (hereinafter referred to as the "provincial market regulatory authorities") to be responsible for the anti-monopoly law enforcement against monopoly agreements, abuse of a dominant market position, and abuse of intellectual property rights to exclude or restrict competition within their respective administrative regions.
For the purpose of the Provisions, the anti-monopoly law enforcement authorities shall include the SAMR and provincial market regulatory authorities.
Article 5 For the purpose of the Provisions, "relevant markets", including the relevant commodity markets and the relevant geographic markets, are defined pursuant to the Anti-Monopoly Law and the Guidelines of the Anti-monopoly Commission under the State Council concerning the Definition of Relevant Markets, with the effects of intellectual property rights, innovation and other factors taken into consideration. In relation to intellectual property licensing and other anti-monopoly enforcement, the relevant commodity markets may be either technology markets or product markets containing specific intellectual property rights. "Relevant technology markets" refer to the markets formed through the competition between technologies involved in the exercise of intellectual property rights and alternative similar technologies.
Article 6 Undertakings shall not, by way of exercising intellectual property rights, conclude among themselves any monopoly agreement prohibited in Article 17 and Paragraph 1 of Article 18 of the Anti-Monopoly Law.
Undertakings shall not, by way of exercising intellectual property rights, organize other undertakings to conclude a monopoly agreement or provide substantial assistance for other undertakings to conclude a monopoly agreement.
Where undertakings can prove that the agreement concluded falls under the circumstances as prescribed in Article 20 of the Anti-Monopoly Law, Paragraphs 1 and 2 shall not apply.
Article 7 Where an undertaking concludes an agreement as prescribed in Items 1 and 2, Paragraph 1 of Article 18 of the Anti-Monopoly Law with a transaction counterpart by way of exercising intellectual property rights, and the undertaking can prove that it does not have the effect of excluding or restricting competition, it shall not be prohibited.
Where an undertaking concludes an agreement with a transaction counterpart by way of exercising intellectual property rights, and the undertaking can prove that the share in the relevant market of the undertaking participating in the agreement is lower than the standard prescribed by the SAMR and meets other conditions prescribed by the SAMR, it is not prohibited.
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