China: An overview of intellectual property rights guidelines and global considerations for antitrust practitioners

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.

The authors are grateful for the research assistance of summer associate Jason Sugarman, Davis Polk & Wardwell LLP, Washington, DC. I. Introduction 1. Since the inception of the Chinese antitrust regime in 2008, China has rapidly established itself as a force in global antitrust enforcement, particularly in technology sectors and other industries that depend on intellectual property rights (“IPRs”). Multinational companies in those sectors have increasingly found themselves in the crosshairs of Chinese enforcers. In 2015, for example, China levied a nearly billion-dollar fine against Qualcomm, and it is currently conducting a large-scale investigation of Microsoft for potential violations of the Anti-Monopoly Law of the People’s Republic of China (“AML”). And while China has at times

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.


PDF Version


  • Davis Polk & Wardwell (Menlo Park)
  • Davis Polk & Wardwell (Washington D.C.)


Christopher B. Hockett, Jesse Solomon, China: An overview of intellectual property rights guidelines and global considerations for antitrust practitioners, November 2016, Concurrences Nº 4-2016, Art. N° 81538,

Visites 432

All reviews