(Promulgated by Decree No.74 of the State Administration for Industry and Commerce on April 7, 20 15)
Article 1 These 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) for the purpose of protecting fair competition in the market, encouraging innovation and stopping business operators from abusing intellectual property rights to exclude or restrict competition.
Article 2 The objectives of anti-monopoly and intellectual property protection are the same, that is, to promote competition and innovation, improve the efficiency of economic operation, and safeguard the interests of consumers and the public.
The Anti-Monopoly Law does not apply to operators who exercise intellectual property rights in accordance with laws and administrative regulations on intellectual property rights; However, the anti-monopoly law applies to the behavior of business operators who abuse intellectual property rights and exclude or restrict competition.
Article 3 Abuse of intellectual property rights to exclude and restrict competition as mentioned in these Provisions refers to monopolistic behaviors (except price monopoly) such as operators violating the provisions of the Anti-Monopoly Law, exercising intellectual property rights, implementing monopoly agreements and abusing market dominance.
The related markets mentioned in these Provisions, including related commodity markets and related regional markets, shall be defined according to the Anti-monopoly Law and the Guidelines for Defining Related Markets of the State Council Anti-monopoly Committee, and the influence of intellectual property rights, innovation and other factors shall be considered. In the anti-monopoly law enforcement work involving intellectual property licensing, the relevant commodity market can be a technology market or a product market containing specific intellectual property rights. Related technology market refers to the market formed by the competition between the technologies involved in the exercise of intellectual property rights and similar technologies that can be substituted for each other.
Article 4 An operator shall not reach a monopoly agreement prohibited by Articles 13 and 14 of the Anti-Monopoly Law by exercising intellectual property rights. However, unless the operator can prove that the agreement reached conforms to the provisions of Article 15 of the Anti-Monopoly Law.
Article 5 A business operator exercising intellectual property rights under any of the following circumstances shall not be deemed as a monopoly agreement prohibited by Item 6 of Paragraph 1 of Article 13 or Item 3 of Article 14 of the Anti-Monopoly Law, unless there is evidence to the contrary that the agreement has the effect of excluding or restricting competition:
(1) The total market share of the competitive operators in the relevant markets affected by their actions does not exceed 20%, or at least four other independently controlled alternative technologies can be obtained at a reasonable cost in the relevant markets;
(2) The market share of both the operator and the counterparty in the relevant market does not exceed 30%, or at least two other independently controlled alternative technologies can be obtained at a reasonable cost in the relevant market.
Article 6 Operators with dominant market position shall not abuse their dominant market position to exclude or restrict competition in the process of exercising intellectual property rights.
Market dominance is determined and presumed according to the provisions of Articles 18 and 19 of the Anti-Monopoly Law. Operators' possession of intellectual property rights can be one of the factors that determine their market dominance, but it cannot be inferred that they have a market dominance in relevant markets just based on their possession of intellectual property rights.
Article 7 An operator with a dominant market position shall not refuse to license other operators to use their intellectual property rights under reasonable conditions without justifiable reasons, and shall not exclude or restrict competition when their intellectual property rights constitute necessary convenient conditions for production and business activities.
When identifying the acts mentioned in the preceding paragraph, the following factors need to be considered at the same time:
(1) The intellectual property right cannot be reasonably substituted in the relevant market and is necessary for other operators to participate in the competition in the relevant market;
(2) Refusing to license intellectual property rights will adversely affect competition or innovation in relevant markets and harm the interests of consumers or the public;
(3) Licensed intellectual property rights will not cause unreasonable damage to operators.
Article 8 An operator with a dominant market position shall not engage in the following trading restrictions that exclude or restrict competition in the process of exercising intellectual property rights without justifiable reasons:
(1) Restrict the counterparty from trading with it only;
(2) Restrict counterparties from trading only with their designated operators.
Article 9 An operator with a dominant market position shall not, without justifiable reasons, tie in goods that meet the following conditions in the process of exercising intellectual property rights, and exclude or restrict competition:
(1) Forcibly bundling or combining different commodities in violation of trading habits and consumption habits. Or ignore the function of goods;
(two) the implementation of tying behavior, so that operators will expand their dominant position in the tying commodity market to the tying commodity market, and exclude or restrict the competition of other operators in tying commodities or tying commodity markets.
Article 10 An operator with a dominant market position shall not, without justifiable reasons, engage in the following acts of excluding or restricting competition in an unreasonable way in the process of exercising intellectual property rights:
(1) Require the counterparty to give exclusive feedback on the improved technology;
(2) Prohibiting counterparties from questioning the validity of their intellectual property rights;
(3) after the expiration of the license agreement, restrict the other party from using competitive goods or technologies that do not infringe intellectual property rights;
(4) Continue to exercise the intellectual property rights that have expired or been deemed invalid;
(5) Prohibiting the counterparty from trading with a third party;
(6) imposing other unreasonable restrictions on the counterparty.
Article 11 Operators with dominant market position shall not discriminate against counterparties with the same conditions, exclude or restrict competition in the process of exercising intellectual property rights without justifiable reasons.
Twelfth operators in the process of exercising intellectual property rights, shall not use the patent pool to exclude or restrict competition.
Members of the patent pool shall not use the patent pool to exchange competitive sensitive information such as output and market division, and reach monopoly agreements prohibited by Articles 13 and 14 of the Anti-Monopoly Law. However, unless the operator can prove that the agreement reached conforms to the provisions of Article 15 of the Anti-Monopoly Law.
Without justifiable reasons, a patent pool management institution with a dominant market position shall not abuse its dominant market position and use the patent pool to exclude or restrict competition:
(1) Restrict joint venture members from licensing patents outside the joint venture as independent licensors;
(2) Restrict joint venture members or licensees from developing technologies competing with joint venture patents independently or jointly with third parties;
(three) forcing the licensee to exclusively license the improved or developed technology to the patent pool management institution or the patent pool members;
(four) prohibit the licensee from questioning the validity of the joint venture patent;
(five) to give the same conditions to the members of the joint venture or the licensee in the same relevant market in terms of trading conditions;
(six) other acts of abuse of market dominance identified by the State Administration for Industry and Commerce.
The patent pool mentioned in these Provisions refers to an agreement between two or more patentees to license their respective patents to a third party in some form. Its form can be a joint venture company specially established for this purpose, or it can be entrusted to joint venture members or an independent third party for management.
Article 13 In the process of exercising intellectual property rights, business operators shall not take advantage of the formulation and implementation of standards (including the mandatory requirements of national technical specifications, the same below) to engage in acts of excluding or restricting competition.
Operators with dominant market position shall not, without justifiable reasons, carry out the following acts of excluding or restricting competition in the process of formulating and implementing standards:
(a) in the process of participating in the formulation of standards, deliberately not disclosing the information of their rights to the standard-setting organizations, or explicitly giving up their rights, but claiming their patent rights to the implementers of standards after they involve patents.
(2) After its patent has become a standard essential patent, it violates the principles of fairness, reasonableness and non-discrimination, and implements such acts as refusing to license, tying goods or attaching other unreasonable trading conditions to the transaction to exclude or restrict competition.
The standard essential patent mentioned in these Provisions refers to the patent necessary for the implementation of this standard.
Article 14 Where an operator is suspected of abusing intellectual property rights to exclude or restrict competition, the administrative department for industry and commerce shall conduct an investigation in accordance with the Anti-Monopoly Law and the Procedural Provisions for the Administrative Department for Industry and Commerce to Investigate Cases of Monopoly Agreements and Abuse of Market Dominance.
Fifteenth analysis found that operators suspected of abusing intellectual property rights to exclude or restrict competition, you can take the following steps:
(a) to determine the nature and manifestations of the intellectual property rights exercised by the operators;
(two) to determine the nature of the relationship between the operators exercising intellectual property rights;
(3) Defining the relevant markets involved in the exercise of intellectual property rights;
(four) to identify the market position of the operators who exercise intellectual property rights;
(V) Analysis of the impact of the operators' exercise of intellectual property rights on the competition in relevant markets.
To analyze and identify the nature of the relationship between operators, we need to consider the characteristics of the behavior of exercising intellectual property rights. In the case of intellectual property licensing, the original competitive operators are a trading relationship in the licensing contract, but in the market where both the licensor and the licensee use intellectual property to produce products, it is also a competitive relationship. However, if the licensing agreement between the parties is not competitive at the time of conclusion, and the competitive relationship only occurs after the conclusion of the agreement, it is still not regarded as an agreement between competitors, unless the original agreement is substantially changed.
Article 16 The following factors shall be considered when analyzing and identifying the impact of the exercise of intellectual property rights by business operators on competition:
(a) Market position of operators and counterparties;
(2) Market concentration of relevant markets;
(three) the difficulty of entering the relevant market;
(four) industry practices and industry development stage;
(five) the time and scope of the restrictions in terms of output, region and consumers;
(six) the impact on promoting innovation and technology promotion;
(seven) the operator's innovation ability and the speed of technological change;
(eight) other factors related to determining the impact of the exercise of intellectual property rights on competition.
Article 17 Where an operator's abuse of intellectual property rights to exclude or restrict competition constitutes a monopoly agreement, the administrative department for industry and commerce shall order him to stop the illegal act, confiscate his illegal income, and impose a fine of more than 1% and less than 10% of the previous year's sales; If the monopoly agreement reached is not implemented, a fine of less than 500,000 yuan may be imposed.
Where an operator abuses intellectual property rights to exclude or restrict competition, which constitutes an abuse of market dominance, the administrative department for industry and commerce shall order him to stop the illegal act, confiscate his illegal income, and impose a fine of more than 1% and less than 10% of the previous year's sales.
The administrative department for industry and commerce shall consider the nature, circumstances, degree and duration of the illegal act when determining the specific amount of fine.
Article 18 The State Administration for Industry and Commerce shall be responsible for the interpretation of these Provisions.
Nineteenth these Provisions shall come into force as of August 0, 2005.