Comment of the Global Antitrust Institute, George Mason University School of Law, on the National Development and Reform Commission's Draft Anti-Monopoly Guideline on Intellectual Property Abuse

31 Pages Posted: 15 Jan 2016

See all articles by Joshua D. Wright

Joshua D. Wright

Lodestar Law and Economics

Koren W. Wong-Ervin

Jones Day; George Washington University

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School

Date Written: January 13, 2016

Abstract

This comment is submitted to China's National Development and Reform Commission (NDRC) by the Global Antitrust Institute (GAI) at George Mason University School of Law in response to the NDRC's Draft Anti-Monopoly Guideline on Intellectual Property Abuse. This is the third comment submitted by the GAI to the NDRC on its Draft AML-IP Guidelines. All three of China’s AML agencies are drafting separate guidelines to submit to the State Council of the PRC for consideration. The final guidelines will reportedly apply to all three AML agencies.

Overall, we suggested that the NDRC adopt a more compliance-based approach that sets forth basic principles that would allow parties to self-advise. The current Draft Guideline instead sets forth a list of factors that the NDRC will consider when analyzing specific conduct. The Draft Guidelines do not explain the significance of each of the factors or how they will be weighed in the Anti-Monopoly Law (AML) agencies’ overall decision-making process. This approach allows the AML agencies broad discretion in enforcement decision-making without providing the guidance stakeholders need to protect incentives to innovate and transfer technology that could be subject to AML jurisdiction. Lastly, we recommend that the NDRC include throughout the Guidelines examples similar to those found in the U.S. antitrust agencies’ 1995 Antitrust Guidelines for the Licensing of Intellectual Property to illustrate how the AML agencies will apply the basic principles. We also provide specific line-edit proposed edits on four provisions: general analysis, charging “unfairly high” royalties, discriminatory treatment, and injunctive relief.

Keywords: antimonopoly, antitrust, China, discriminatory treatment, injunctive relief, intellectual property, National Development and Reform Commission, NDRC, patent, unfairly high royalties

JEL Classification: K21, L4, L5

Suggested Citation

Wright, Joshua D. and Wong-Ervin, Koren and Ginsburg, Douglas H. and Kobayashi, Bruce H., Comment of the Global Antitrust Institute, George Mason University School of Law, on the National Development and Reform Commission's Draft Anti-Monopoly Guideline on Intellectual Property Abuse (January 13, 2016). George Mason Law & Economics Research Paper No. 16-04, Available at SSRN: https://ssrn.com/abstract=2715173 or http://dx.doi.org/10.2139/ssrn.2715173

Joshua D. Wright (Contact Author)

Lodestar Law and Economics ( email )

P.O. Box 751
Mclean, VA 22101
United States

Koren Wong-Ervin

Jones Day ( email )

51 Louisiana Avenue, NW
Washington, DC 20001
United States
2028793622 (Phone)

HOME PAGE: http://www.jonesday.com/en

George Washington University ( email )

2121 I Street NW
Washington, DC 20052
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
114
Abstract Views
1,749
Rank
454,357
PlumX Metrics