An international comparison of the interaction between IP rights and competition laws shows the progress and pitfalls in China’s approach, write Suzanne Rab, Jet Zhisong Deng and Russ Wofford
The challenges of balancing intellectual property rights (IPR) and competition law are not new. The State Administration of Industry and Commerce (SAIC) released the fifth draft of Guidelines on Enforcement of Anti-Monopoly Law in the Area of Intellectual Property last August. The draft IPR guidelines represent a welcome development in providing insight on the interaction between IPR and the Anti-Monopoly Law (AML), which came into effect on 1 August 2008.
The SAIC is not the only agency for enforcing competition rules in IP cases. The Ministry of Commerce handles merger controls and the National Development and Reform Commission investigates price-related cartels and abuse of dominance, while the SAIC handles other cartels and abuse of dominance. According to article 9 of the AML, it is the responsibility of the Anti-Monopoly Commission (AMC), under the State Council, to promulgate guidelines relating to the AML. The AMC appoints the SAIC to draft guidelines. The SAIC initiated the drafting process in 2009.
There are similarities between the IPR guidelines and the approach taken by competition authorities worldwide, most notably in the EU and US. However, there are notable differences where the impact on IPR holders manufacturing, distributing or selling products or services using IPR in China is not yet clear.
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Suzanne Rab is an EU and UK competition lawyer based in London, with experience advising on transactions and behavioural matters, including before the UK competition and regulatory authorities and the European Commission. Jet Zhisong Deng is a partner at T&D Associates in Beijing, practising in antitrust and international trade law in China, and a research fellow at the Beijing-based University of International Business and Economics. Russ Wofford is a partner in the antitrust practice at King & Spalding in Atlanta.