Anti-Monopoly Commission (“AMC”) has charged four Chinese state agencies with developing guidelines on when IPR-related conduct violates China’s Anti-Monopoly Law. So far, two of those agencies—the NDRC, which oversees price-related conduct, and the SAIC, which oversees non-price-related conduct—have released draft guidelines. Those drafts, however, display striking differences between the enforcement approach of the two agencies, the NDRC appears significantly more open than the SAIC to balancing anticompetitive harms with procompetitive benefits under a rule-of-reason approach,
whereas the SAIC’s draft in places imposes a threshold requirement of a dominant market position.Here, the authors explore five elements of the NDRC and SAIC guidelines— (1) safe harbors, (2) “unfairly high” licensing rates, (3) refusals to deal, (4) patent pools, and (5) standard-essential patents—and highlight the core principles of the Chinese agencies, comparing them with one another as well as with international standards. The authors also raise practice considerations for clients and counsel when assessing risk exposure for IPR-related business strategies that cross international boundaries.