SAIC Releases Guidelines on the Enforcement of the Anti-Monopoly Law with Respect to IP Rights

On 7 April 2015, the State Administration for Industry and Commerce (“SAIC”) released its long-awaited regulation on intellectual property rights (“IPR”) and competition law (the “Provisions on Prohibition of Abuse of Intellectual Property Rights to Eliminate or Restrict Competition” (“IPR Regulation”)). After no less than five years of research, consultations, drafting, and at times heated debates with stakeholders, the IPR Regulation will take effect as of 1 August 2015. It marks a watershed for IPR and competition law in China, a complex inter-relationship that has sparked controversies in jurisdictions worldwide.

As the SAIC is tasked with enforcing China’s Anti-Monopoly Law (“AML”) against non-price related anti-competitive conduct, the IPR Regulation applies within the SAIC’s own enforcement remit, not the price-related anti-competitive conduct (which falls within the jurisdiction of the National Development and Reform Commission (“NDRC”)) or IPR issues arising in the review of mergers (the Ministry of Commerce (“MOFCOM”) is in charge of merger review). Notwithstanding, the IPR Regulation is China’s first comprehensive implementing regulation addressing the exercise of IPRs and signals that the SAIC is prepared to intensify enforcement in this area.

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