SAIC Soliciting Opinions on Draft AML Guidelines Regulating IPR Abuse
On February 4, China's State Administration for Industry and Commerce (SAIC) released for public comment on its website draft Guidelines for Anti-Monopoly Enforcement Against Abuse of Intellectual Property Rights (SAIC 7th Version). The comment period will end February 23.
The 7th draft introduces several key points:
- Inclusion of the "essential facility" concept, potentially leading to compulsory licensing by dominant companies
- Disclosure and licensing obligations with regard to standard essential patents that go beyond broadly recognized international norms
- Introduction of broad regulation on copyright collective management organizations, expanding the coverage of the draft AML Guidelines to include copyright licensing activities
- Recognition of SIPO's role in IPR-related AML enforcement, particularly in terms of mandatory licensing of invention patents and utility model patents
SAIC has been working on the Guidelines since 2009, and completed the 5th draft in 2012. Realizing that the Guidelines would require a lengthier, more extensive drafting process, SAIC first released a set of Rules on Prohibition of IPR Abuse for the Purpose of Eliminating or Restricting Competition mid last year with the stated purposes of addressing urgent issues such as the abuse of dominant market positions, and accumulating experience to support ultimate drafting of the Guidelines.
SAIC then re-initiated the drafting of the Guidelines in 2015, and made its 6th version available online for comments in January 2016. It should be recognized that SAIC has adopted a transparent and open development process for these latest two versions.
USITO has shared with members the original draft of the 7th version and the drafting explanation document, along with the unofficial translation, and is seeking member comments.
