IP and competition law—the Chinese perspective

Abstract

Recent case law and enforcement activities in China have begun to shed light on the approach of Chinese courts and competition authorities towards the application of competition law to issues involving intellectual property rights. This article considers these developments against the backdrop of the prevailing European and US practices, with particular focus on standard essential patents and how they relate to the issues of: (i) compulsory licensing; (ii) use of injunctive relief to enforce standard essential patents; (iii) how a FRAND royalty rate should be determined; and (iv) tying or bundling of licences. Although some of the principles applied by the Chinese courts and authorities are broadly in line with those adopted in the European Union and the US, the lack of a clear approach in areas such as compulsory licensing, the concept of ‘willing licensee’ and the determination of FRAND rates serves as a reminder that the regulation of competition and intellectual property laws in China is a comparatively recent endeavour and continues to evolve. The article concludes with a summary of competition enforcement activities in other areas of intellectual property rights and the lessons that businesses should be aware of in China.