NDRC opens consultation on the Anti-Monopoly Guidelines for IPRs

China published a draft of its first Anti-Monopoly Guidelines on Abuse of Intellectual Property Rights on Thursday and started soliciting public opinion.

The consultation period is from 1 until 20 January 2016, according to the National Development and Reform Commission.

The commission leads the drafting work of six sets of anti-monopoly guidelines, including abuse of IPRs, anti-monopoly issues of the automobile industry and leniency rules of monopoly agreements, based on the work plan of the Anti-Monopoly Commission under the State Council.

The drafting work of the IPR guidelines officially started in June 2015. The drafting of the Guidelines is pursuant to the legislative principles of the Anti-Monopoly Law, which aims to establish guiding rules for anti-monopoly scrutiny of abuse of IPRs, improves transparency of enforcement, provides the market with clear and reasonable expectations, and guides business operators to exercise IPRs in a proper way.

The Price Supervision and Anti-Monopoly Bureau of the NDRC set up the drafting team, commissioned research projects, organized workshops and seminars, conducted surveys, summarized enforcement experience relating to abuse of IPRs, and drew lessons from the rich experience of other jurisdictions, according to the bureau.

The drafting team comprehensively considered the opinions and suggestions from the relevant parties within and outside of China, in particular the feedback on questionnaires and formulation of the draft guideline.

The guidelines clearly state that the Anti-Monopoly Law does not apply to the proper exercise of IPRs but does apply to conduct that eliminates or restricts competition and thus impedes innovation.

The main text of the guidelines cover antitrust issues related to joint R&D, patent pool, cross licensing, standardization, price restrictions, exclusive grant-back, no-challenge clause, exemption of agreements, unfairly high royalty fees, refusal to license, tying, discriminatory treatment and injunctive relief.