Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition (Revised in 2020)
Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition (Revised in 2020)
Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Exclude or Restrict Competition (Revised in 2020)
Order of the State Administration for Market Regulation No.31
October 23, 2020
(Promulgated by the Order of the State Administration for Industry and Commerce No.74 on April 7, 2015; revised according to the Order of the State Administration for Market Regulation No.31 on October 23, 2020)
Article 1 In order to protect fair market competition, encourage innovation, and stop operators from abusing 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.
The Anti-monopoly Law does not apply to the exercise of intellectual property rights by operators in accordance with the provisions of laws and administrative regulations concerning intellectual property rights, but applies to the abuse of intellectual property rights by operators to exclude or restrain competition.
Article 3 For the purpose of the Provisions, "abuse of intellectual property rights to exclude or restrict competition" refers to the operators violating the Anti-monopoly Law when exercising the intellectual property rights, implementing monopoly agreements, abusing dominant market positions and conducting other monopolistic behaviors.
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 4 Operators shall not, by way of exercising intellectual property rights, reach among themselves any monopoly agreement prohibited in Articles 13 and 14 of the Anti-monopoly Law, except the operators can demonstrate that the agreement reached complies with the provisions of Article 15 of the Anti-monopoly Law.
Article 5 If an operator's exercise of intellectual property rights falls under either of the following circumstances, the relevant agreement may not be regarded as a monopoly agreement prohibited in Item 6, Paragraph 1 of Article 13 and Item 3 of Article 14 of the Anti-monopoly Law, except there is contrary evidence indicating that such agreement is of effects to exclude or restrict competition:
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