Crossroads: Anti-monopoly and IP rights

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A dynamic area of discussion in the Chinese legal community is the overlap between intellectual property (IP) rights and anti-monopoly rules. Though it remains a grey area of varying opinions without clear legal guidance, IP rights owners need to be aware of developments and protect their interests through careful structuring and strategy

The relationship between China's anti-monopoly laws (AM Laws) and the PRC intellectual property laws (IP Laws) attracts intense discussions among government officials, academics and legal practitioners. Some view intellectual property rights (IPRs) as an exception to the application of AM Laws; while others argue that AM Laws should apply strictly to the cases where IPRs are involved.

This article sets out the latest prevailing opinion on several controversial issues concerning the application of AM Laws in an IPR context, such as: 1) the relationship between IPRs and monopoly; 2) the definition of abusing IPRs; and 3) the application of the PRC Anti-monopoly Law (中华人民共和国反垄断法) (the AML) and some intellectual property-related law provisions which have anti-monopoly effects (IP Provisions with AM effects). This article will also briefly introduce three outstanding issues relating to the application of AM Laws in an IPR context which the current legal system fails to fully address.

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