The Impacts of the Chinese Anti-Monopoly Law on IP Commercialization in China & General Strategies for Technology-Driven Companies and Future Regulators

By: Yijun Tian

After thirteen years of discussion and three revisions, China’s Anti-Monopoly Law (AML) was promulgated on August 30, 2007 and has come into effect on August 1, 2008. It is the first anti-monopoly law in China and has been viewed as an “economic constitution” and a “milestone of the country’s efforts in promoting a fair competition market and cracking down on monopoly activities.” However, the wording of some provisions of the AML, including the sections dealing with Intellectual Property (IP) protection, is not very clear. And juridical interpretations and more specific implementing regulations on the AML have not yet appeared. This has led to a lot of uncertainty for the operations of foreign enterprises, particularly IP related enterprises in China. This iBrief will provide an overview of possible impacts of the AML on the IP protection and commercialization in China. First, it will provide a brief overview of the AML, including both major compliments and criticism. Second, it will examine both opportunities and potential legal risks of foreign IP holders and investors when operating in China, particularly focusing on the impacts of Article 55, the IP-related provision. Thirdly, it will provide some practical suggestions and strategies for foreign IP holders and technology-driven companies to operate in China, such as some useful defenses for potential IP lawsuits. Finally, it will provide some suggestions for future interpretation and implementation of Article 55 in the AML by drawing on lessons from the experiences of the United States and the European Union.

Cite: 2010 Duke L. & Tech. Rev. 004

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