The study reviews the evolution of the European Union’s IPR system and its current IP-licensing regulatory framework. It also addresses subjects relevant to China’s Regulation of IP-Related Anti-Competitive Conducts and suggests principles which should be adhered to when dealing with “Anti-IP Monopoly” in China.

The study has been developed by a team of experts from the EU and China. Steven Anderman currently holds the position of Professor of Law at the University of Essex and Professor of European Law at the University of Stockholm. Huang Yong is the Director of the Economic Law Department of the University of International Business and Economics in Beijing and is a legislative advisor to the State Council and the National People’s Congress.

Table of Content 

EU Report: EU Experience and IPR Policy-Making in China.

Introduction.

Note on the Substantive Areas of EC Competition Law Affecting IPRs

I. Article 82 EC Treaty and Intellectual Property Rights

  1. Introduction
  2. The Concept of Relevant Market and IPRs
  3. The Concept of Dominance in Article 82 EC and Intellectual Property Rights
  4. The Concept of Abuse under Article 82
    a) Some General Points about Defining the Concept of Abuse.
    b) Exploitive and Exclusionary Abuses.
    c) Competition on the Merits.
  5. Defining Specific Abuses
    a) Article 82(b): Refusals to Supply and Licence.
    b) Excessive Pricing and Intellectual Property Rights.
    c) Misuse of the IP System by Dominant Undertakings.
    d) Tie-ins and Licensing Practices and Article 82(d)

II. Article 81 EC Treaty and IP Licensing Agreements

  1. Introduction
    a) Article 81(1) EC.
    b) Article 81(2) EC and Unenforceability.
    c) Exemption under Article 81(3) EC.
    d) The Block Exemption Regulations (or BERs)
  2. The Impact of the Technology Transfer BER and the Guidelines on the Procedural Rules for IP Licensing in the EU
  3. The Substantive Rules in the New Legal Framework for IP Licensing in the EU
  4. The Main Features of the New Technology Transfer Regulation and Guidelines
    a) The New Distinction between “Horizontal” and “Vertical” Agreements.
    b) The Market Share Limits.
    c) The “Hard Core” Restrictions.
    d) Excluded or Severable Restrictions.
    e) Note on the Scope and Duration of the Regulation.
    f) The New Methods of Assessing Individual Restraints in Licensing Agreements.
  5. Assessment of the New EC Regulatory Framework for IP Licensing
    a) The Benefits of Wider Scope and Flexibility.
    b) Article 81 EC and Remedies.

Chinese Report: Principles for the Chinese Regulation of IP-Related Anti-Competitive Conducts 

I. The Relationship between IP and Antitrust Laws
  1. IP “Monopoly” v. “Monopoly” Combated by Antitrust Law
  2. Other Jurisdictions’ Cognition on the Relationship between IP and Antitrust Laws

II. Antitrust Regulation over IP-Related Competition Restrictive Agreements
  1. US Antitrust Policy in the Field of IP
  2. EU Competition Policy in the Field of IP 

III. Antitrust Regulation over IP-Related Concentrations between Undertakings

  1. Principles of Analyzing IP Acquisition in the US
  2. Principles of Analyzing IP Acquisition under EU Concentration of Undertakings
  3. Specific Rules for Analyzing IP-Related Horizontal Mergers
    a) Definition of Relevant Market
    b) Analysis of IP-Related Considerations in Competition Analysis.
  4. Analysis of IP-Related “Ancillary Restraints” in Concentration Agreements
    a) Non-Competition Restraint
    b) License Agreement

IV. Antitrust Regulation over IP-Related Abuse of Dominance.

  1. Analysis of Legal Elements of Prohibited Abuse of Dominance
    a) Market Definition and Market Power
    b) Exclusionary Acts.
  2. Comments on China’s Antimonopoly Legislation
    a) Prohibition of Abuse of Dominance.
    b) IP and Antitrust Laws.

V. Reflection on China’s Antitrust Regulation in the field of IP.

  1. Principles and Standpoints Necessary for Antitrust Regulation over IP
  2. Conciliation between IP Laws and Antitrust Laws 

The “Competition Policy and Intellectual Property Rights: EU Experience and Prospects for China” is available for download below:
 Competition Policy and Intellectual Property Rights: EU Experience and Prospects for China 953.69 Kb