Tentative Exploration by SAIC on Regulating the Abuse of IPR to Exclude and Restrict Competition Yang Jie September 16, 2013 State Administration for Industry and Commerce Anti-monopoly and Anti-unfair Competition Enforcement Bureau

Government Fair Competition Innovation Development Support

The Formulation of Guidelines for AML Enforcement in IPR Field In 2009, SAIC launched the research and formulation of Guidelines for AML Enforcement in IPR Field — Analyze and study the practice of foreign competition agencies, relevant guidelines and regulations; — Carry out on-site Investigation and Survey; — Seek for comments on the Guidelines (draft for comments)

Main Contents of the Guidelines It provides three explicit basic principles on the enforcement of anti-trust law on intellectual property rights of the enforcement agency in China: — The protection of IPR and the enforcement of the anti-trust law share a common purpose, namely to encourage innovation and to protect fair competition in the market, as well as to safeguard the interests of consumers and social public. The behavior of exercising intellectual property shall neither be exempted under the Anti-monopoly Law because of the protection of the Intellectual Property Law nor be special reviewed by the Anti-monopoly Law; — The four kind of monopoly behaviors provided by the Anti- monopoly Law does not include the abuse of IPR to eliminate or restrict competition; — The IPR shall be equally treated with other property rights by the enforcement of the Anti-monopoly Law; the possession of IPR itself shall not amount to the presumption of dominant position in the relevant market.

Main Contents of the Guidelines It has established the analysis principles and framework of enforcement of the Anti-monopoly Law on IPR. It has carried out the anti-trust analysis respectively on the exercises of general type on the IPR and the exercises of several certain types of intellectual property rights.

Processes of establishing the Rules of the Administration for Industry and Commerce on the Prohibition of Abuse of Intellectual Property Rights for the Purposes of Eliminating or Restricting Competition At the end of 2012, SAIC initiated the work to draft up the Rules of the Administration for Industry and Commerce on the Prohibition of Abuse of Intellectual Property Rights for the Purposes of Eliminating or restricting Competition In March 2013, SAIC formed the current Rules (Draft for comments)

It has clarified the legislative purpose, explained the related concepts, and determined the factors to identify the impact on competitions by the exercise of IPR; It prohibits the implementation of the monopoly agreement during the exercise of IPR and provides relevant regulations of the rules of presumption and safe harbor; It prohibits the abuse of dominant market position during the exercise of IPR, and respectively provides specific circumstances of refusing the permission of IPR, as well as tying and unreasonable restrictions related to IPR; Main Contents of the Rules (Draft for Comments)

It provides the standards to determine whether certain exercises of intellectual property rights amount to related monopoly behavior; It provides the basis, principles and specific rules of penalty performed by the industrial and commercial authorities to investigate and punish the one who eliminate and restrict competition. Main Contents of the Rules (Draft for Comments)

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