CN SMAR Draft Regulation On Forbidding Abusive Use Of IP To Exclude And Limit Competition

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Toby Mak

Contributor

Dr. Toby Mak is somewhat unique as a registered Chinese patent attorney, as he was trained under the UK patent system, and has passed some of the UK patent attorney’s examination papers. He actively publishes articles on Chinese IP, and speaks on Chinese IP for various organizations around the world.
This is a revision from the last draft (in Sep 2021? sorry I lost track).
China Intellectual Property

This is a revision from the last draft (in Sep 2021? sorry I lost track). The official announcement today right before 5PM Beijing time is at the link below, with a deadline to comment being 27 July 2022:

https://lnkd.in/gvYMEGaJ

The explanation mentioned the following changes:

Article 1 - revising "exciting/urging innovation" to "encouraging/stimulating innovation"

Article 3 - clarifying exclusion and limitation of competition includes "reaching monopoly agreements, abusing dominating market position, and monopolistic behaviors and the like, which concentrate operations that have or may have the effect of eliminating or restricting competition"

Article 4 (new) - defining "innovative (R&D) market"

Article 5 - adding "Operators shall not use the method of enforcing intellectual property rights to organize other operators to reach a monopoly agreement or provide substantial assistance for other operators to reach a monopoly agreement"

Article 6 - adding factors to be considered when determining market dominating position

Articles 8 to 10 - improving the determining rules of limiting transactions, tying sales, and imposing unreasonable restrictions

Articles 12 and 13 - adding provisions on the declaration, examination and additional restrictive conditions of the concentration of business operators involved in IP rights

Article 14 - improving provisions on standard pool

Articles 15 and 16 - clarifying and improve provisions regarding standard essential patents

Articles 21 to 26 - enhancing legal liability

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