A brief introduction to NDRC’s antitrust guidelines on IP misuse

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Recently, the National Development and Reform Commission (NDRC) selectively released its consultation draft of the Antitrust Guidelines on Misuses of Intellectual Property Rights (IPRs) to stakeholders, scholars and law firms to solicit comments and suggestions. The final version is expected to be promulgated in 2016. As external expert, Tian Yuan Law Firm has been deeply involved in the consultation process as well as the invitation-only seminars during drafting.

In line with the framework of the draft, this article would briefly introduce the draft from four aspects: basic problems, monopoly agreement, abuse of dominance, and abuse of dominance related to standard essential patents (SEPs).

Basic problems

The draft introduces “innovation market” for the first time, and further clarifies the approach and sequence for defining the goods market, technology market and innovation market. When IPRs are licensed separately from the products in which they are used, or the competitive effects of a licensing arrangement cannot be adequately addressed solely by the goods market, the agencies may bring the technology market into analysis. Furthermore, if competitive effects still cannot be adequately addressed via the above approach, innovation market may be introduced.

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Huang Wei is the managing partner of Tian Yuan Law Firm in Beijing. He can be contacted on +86 10 5776 3678 or by email at hwei@tylaw.com.cn