The Study On Intellectual Property Rights Related Undertaking Concentration Review Guideline

The purpose of anti-monopoly law is against behaviors of precluding and restricting competition while the intellectual property rights is lawful monopoly rights.Thus there are conflicts between anti-monopoly law and intellectual property rights.The conflicts occurred when intellectual property rights are involved into undertakings concentrations.The undertakings might abuse intellectual property rights to harm effective competition.Currently,China still apply general anti-monopoly rules to this area and it reveals many problems in defining relevant markets,conducting competition analysis and carrying unreasonable merger remedies.For the purpose of harmonizing conflicts and promoting competition,it is a necessity to publish an intellectual property rights related undertaking concentration review guideline.The guideline shall contain the following aspects.First of all,for the purpose of antitrust analysis,the Agencies regard intellectual property as being comparable to any other form of property;Secondly,besides defining relevant goods and territory market,the Agencies shall define another technology and innovation markets;Thirdly,when conducting competition analysis,the Agencies shall consider the intellectual property rights related issues such as refusing to license patents,charging unreasonably high royalty fees,tied transactions and specified transaction,establishing technical barrier,increasing efficiency;Fourthly,the Agencies shall pay attention to two special concentration types: standard essential patents(SEP)related concentration and joint innovation,each SEP shall be regarded as a separately relevant technology market and joint innovation will generally become a strong defense against concentration review;Fifthly,safe harbor and merger remedies could be carried to enhance efficiency while minimizing advert effects.