(Published by the State Administration for Market Regulation Decree No. 79 of June 25, 2023, which will be effective from August 1, 2023)

Article 1  This regulation is established in accordance with the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the Anti-Monopoly Law) in order to prevent and stop the abuse of intellectual property rights for the purpose of excluding or restricting competition.
Article 2 Anti-monopoly and the protection of intellectual property rights share the common goal of promoting competition and innovation, improving economic efficiency, and safeguarding consumer interests and social public interests.
Operators shall exercise intellectual property rights in accordance with relevant laws and administrative regulations on intellectual property, but they shall not abuse intellectual property rights to exclude or restrict competition.
Article 3 The term "abuse of intellectual property rights to exclude or restrict competition" in these regulations refers to the conduct of operators who violate anti-monopoly laws by exercising intellectual property rights, engaging in monopolistic agreements, abusing market ascendancy, and implementing monopolistic behaviors such as “concentration of operators” that have or may have the effect of excluding or restricting competition.
Article 4 The State Administration for Market Regulation (hereinafter referred to as the SAMR) is responsible for the unified enforcement of anti-monopoly laws regarding the abuse of intellectual property rights to exclude or restrict competition, as stipulated in Article 13(1) of the Anti-Monopoly Law.
According to Article 13(2) of the Anti-Monopoly Law, the SAMR authorizes the market supervision and administration departments of provinces, autonomous regions, and municipalities directly under the central government (hereinafter referred to as provincial market supervision departments) to be responsible for the enforcement of anti-monopoly laws concerning anti-competitive practices such as monopolistic agreements and abuse of dominant market positions involving the exclusion or restriction of competition through the abuse of intellectual property rights within their respective administrative regions.
The term "anti-monopoly enforcement agencies" referred to in these regulations include the SAMR and provincial-level market supervision departments.
Article 5 The term "relevant market" referred to in these regulations includes relevant product markets and relevant geographic markets, which shall be defined in accordance with the Anti-Monopoly Law and the Guidelines of the State Council Anti-Monopoly Committee on the Definition of Relevant Market, taking into account factors such as intellectual property rights and innovation. In the context of anti-monopoly enforcement involving intellectual property licensing and other activities, a relevant product market can be a technology market or a market for products containing specific intellectual property rights. A relevant technology market refers to a market formed by the mutual competition between technologies involved in exercising intellectual property rights and substitutable similar technologies.
Article 6 Operators shall not, through the exercise of intellectual property rights, engage in monopolistic agreements prohibited under Article 17 and Article 18(1) of the Anti-Monopoly Law.
Business operators shall not, through the exercise of intellectual property rights, organize other business operators to reach monopoly agreements or provide substantial assistance in reaching monopoly agreements for other business operators.
If the operator can prove that the agreement reached falls under the circumstances stipulated in Article 20 of the Anti-Monopoly Law, the provisions of the first and second paragraphs shall not apply.
Article 7 If an operator utilizes its intellectual property rights in a manner that involves reaching agreements with trading counterparties in accordance with Article 18(1.1) and (1.2) of the Anti-Monopoly Law, and can prove that such agreements do not have the effect of excluding or restricting competition, they shall not be prohibited.
If an operator utilizes its  intellectual property rights to reach agreements with trading counterparties in business transactions, andcan demonstrate that the market share of participating operators in the relevant market is below the standard prescribed by the SAMR and they meet other conditions specified by SAMR, they shall not be prohibited. Specific standards can refer to the relevant provisions of the "Anti-monopoly Guidelines on Intellectual Property Rights" issued by the State Council Anti-monopoly Commission.
Article 8 Operators with a dominant market position shall not abuse their market ascendancy in the exercise of intellectual property rights, excluding or restricting competition.
The determination and presumption of market ascendancy are based on the provisions of anti-monopoly laws and the "Provisions on Prohibiting Abuse of Market Ascendancy." The possession of intellectual property rights by a business operator can be one factor in determining its market ascendancy, but it cannot be presumed solely based on the business operator's ownership of intellectual property rights that it holds a market dominant position in the relevant market.
In determining whether an operator with intellectual property rights possesses a dominant position in the relevant market, factors to consider include the possibility of trading counterparties in the relevant market turning towards substitute technologies or products, the costs of such transfers, the degree of dependence of downstream markets on goods provided through intellectual property, and the counterbalancing capacity of transaction counterparties against the operator.
Article 9 Operators with a dominant market position shall not engage in unfair pricing of licensing intellectual property or selling products containing intellectual property, during the exercise of intellectual property rights, with the intent to exclude or restrict competition.
Factors that can be considered to determine the aforementioned behavior include:
(1) research and development cost and recovery period of this intellectual property;
2) calculation method and licensing conditions for the licensing fees of this intellectual property.
3) historical licensing fees or licensing fee standards that can be used as reference for this intellectual property.
4) commitments made by the operator regarding the licensing of this intellectual property.
5) other relevant factors that need to be considered.
Article 10 Operators with a dominant market position shall not, without justifiable reasons, refuse to license other operators to use the intellectual property under reasonable conditions during the exercise of said intellectual property, thereby excluding or restricting competition.
The following factors should be simultaneously considered when determining the aforementioned behavior:
(1) the intellectual property in question cannot be reasonably substituted in the relevant market and is necessary for other operators to participate in competition in the relevant market;
(2) refusing to license the intellectual property rights would result in adverse effects on competition or innovation in the relevant market, harming consumer interests or societal public interests;
(3) licensing the intellectual property rights will not cause unreasonable harm to the operator.
Article 11 Operators with a dominant market position shall not engage in the following restrictive trade practices, excluding or restricting competition, during the exercise of intellectual property rights, unless justified by legitimate reasons:
(1) restricting the trading counterparties to transacting only with the operators themselves;
(2) restricting the trading counterparties to transacting only with some specific designated operators ;
(3) prohibiting  the counterparties from engaging in transactions with specific operators.
Article 12 Operators with a dominant market position shall not engage in the following tying practices, excluding or restricting competition, in the exercise of intellectual property rights without legitimate justification, in violation of industry or sector transactional practices, consumer habits, or disregarding the functionality of goods:
(1) forcing or coercing a licensee in a covert way to purchase other unnecessary products during the licensing of intellectual property rights;
(2) forcing or coercing a licensee in a covert way to accept a package license during the licensing of intellectual property rights.
Article 13 Operators with a dominant market position shall not, without justified reasons, impose the following unfair transactional conditions, exclude or restrict competition during the exercise of intellectual property rights:
(1) requiring the trading counterparties for an exclusive or sole grant-back licensing on its improved technology, or demands cross-licensing in the same technological field without offering reasonable consideration;
(2) prohibiting the trading counterparties from questioning the validity of its intellectual property rights;
(3) prohibiting the trading counterparties from utilizing competitive technologies or products after the expiration of the license agreement, even under the condition that no intellectual property rights are infringed;
(4) imposing additional unreasonable conditions on the trading counterparties.
Article 14 Operators with a dominant market position shall not, without justifiable reason, impose discriminatory treatment, exclusion, or competition restriction on counterparties with the same conditions during the exercise of intellectual property rights.
Article 15 If the concentration of operators involving intellectual property rights reaches the threshold stipulated by the State Council from which a declaration is necessary, the operator shall make a declaration to the State Administration for Market Regulation in advance, and the concentration shall not be carried out before the declaration is made or the declaration is approved.
Article 16 The examination of operator concentration involving intellectual property rights shall take into account the factors stipulated in Article 33 of the Anti-monopoly Law and the characteristics of intellectual property rights.
Depending on the specific circumstances of an operator concentration transaction involving intellectual property rights, additional restrictive conditions may include the following situations:
(1) divesting intellectual property rights or business related to intellectual property rights;
 (2) maintaining independent operation of businesses related to intellectual property rights;
(3) licensing intellectual property rights under reasonable terms and conditions;
(4) other restrictive conditions
Article 17 Operators shall not engage in exclusionary or anti-competitive practices through patent pooling while exercising intellectual property rights.
Members of a patent pool shall not exchange sensitive information related to competition such as prices, production volumes, market allocation, etc., and shall not engage in monopolistic agreements prohibited by Article 17 Article 18(1) of the Anti-Monopoly Law, unless the operators can prove that the agreements reached are in conformity with the provisions of Article 18(2), (3) and Article 20 of the Anti-Monopoly Law.
A patent pool entity with a dominant market position or a member of a patent pool shall not use the patent pool to engage in the following acts of abusing the market ascendancy:
(1) unfairly licensing pooled patents at high prices;
(2) restricting the scope of patent use by patent pooling members or licensees without justified reasons;
(3) prohibiting patent pooling members from independently licensing patents outside the pooling arrangement without justified reasons;
(4) prohibiting pooling members or licensees, without justified reasons, from independently or jointly developing technologies that compete with the pooled patents with third parties;
(5) forcing licensees to exclusively or solely grant their improved or developed technologies back to the patent pool entity or its members without justified reasons;
(6) prohibiting, without justified reasons, licensees from challenging the validity of pooled patents;
(7) forcing the combination licensing of competitive patents without justified reasons or combining non-essential patents or expired patents with other patents for compulsory licensing;
(8) imposing differential treatment in transaction terms  among the patent pooling members with the same conditions or licensees in the same relevant market without justified reasons;
(9) other practices of abusing the market ascendancy as determined by the State Administration for Market Regulation.
The term "patent pool" referred to in these regulations refers to two or more operators who jointly license their respective patents to members of the pool or third parties. The parties to the patent pool usually entrust the management of the pool to members of the pool or independent third parties. The specific ways of forming a patent pool include reaching an agreement, establishing a company or other entity, etc.
Article 18 Without justified reasons, operators shall not, in the process of exercising intellectual property rights, engage in the following monopolistic agreements through the establishment and implementation of standards:
(1) uniting with competing operators to exclude specific operators from participating in standard-setting or excluding specific operators from relevant standard technical solutions;
(2) uniting with competing operators to exclude other specific operators from implementing relevant standards;
(3) agreeing with competing operators not to implement other competitive standards;
(4) other monopolistic agreements recognized by the State Administration for Market Regulation.
Article 19 Operators with a dominant market position shall not engage in the following behaviors during the formulation and implementation of standards, to exclude or restrict competition:
(1) failing to timely and fully disclose their rights information as stipulated by the standard-setting during participating in the standard-setting process, or explicitly waiving their rights, but claiming the patent right from the standard implementer after the standard involves the patent;
(2) violating the principles of fairness, reasonableness and non-discrimination by licensing at an unfairly high price, refusing to license without a justifiable reason, tying in the sale of goods or imposing other unreasonable transaction conditions, or practicing differential treatment after its patents have become Standard Essential Patents, etc.;
(3) in the course of licensing Standard Essential Patents, violating the principles of fairness, reasonableness and non-discrimination, requesting a court or other relevant authority to make a judgment, ruling or decision prohibiting the use of the relevant intellectual property rights, etc., without negotiating in good faith, and forcing the licensee to accept an unfairly high price or other unreasonable transaction conditions;
(4) other behaviors recognized by the State Administration for Market Regulation as the abuse of market ascendancy.
The term "Standard Essential Patents" referred to in these regulations refers to a patent that is essential for the implementation of the standard.
Article 20 Factors to consider in determining the "justified reasons" referred to in Articles 10 to 14 and Articles 17 to 19 of these regulations may include the following:
(1) encouraging innovation and promote fair market competition;
(2) necessary for exercising or protecting intellectual property rights;
(3) necessary to meet product safety, technical performance, or product efficacy requirements;
(4) based on actual needs of the transaction parties and conforming to legitimate industry practices and trade customs.
(5) other factors that can demonstrate the legitimacy of the behavior.
Article 21 When exercising copyright and related rights, operators shall not engage in monopolistic behaviors prohibited by the Anti-Monopoly law and these regulations.
Article 22 The following steps may be taken in analyzing and determining the suspected abuse of intellectual property rights by an operator to exclude or restrict competition:
(1) determining the nature and forms of the operator's exercise of intellectual property rights;
(2) determining the nature of the relationships among operators exercising intellectual property rights;
(3) defining the relevant markets involved in the exercise of intellectual property rights.
(4) identifying the market position of the operators exercising intellectual property rights.
(5) analyzing the impact of the operator's exercise of intellectual property rights on competition in the relevant markets.
Determining the nature of the relationships among operators requires considering the nature of the exercise of intellectual property rights. In cases involving intellectual property licensing, operators who may have had a competitive relationship originally establish a transactional relationship through the licensing agreement. However, in the market where both the licensor and licensee utilize the intellectual property to produce products, they again have a competitive relationship. However, if there is no competitive relationship between operators at the time of entering into a licensing agreement and a competitive relationship arises only after the agreement is made, it is still not considered an agreement between competitors unless there is a substantial change to the original agreement.
Article 23 When analyzing the impact of an operator's exercise of intellectual property rights on relevant market competition, the following factors shall be taken into account:
(1) the market position of the operator and the counterparty in the transaction;
(2) the market concentration of the relevant market;
(3) the ease of entry into the relevant market;
(4) industry practices and the stage of industry development;
(5) the duration and scope of restrictions on production, regions, consumers, etc.;
(6) the impact on promoting innovation and technology promotion;
(7) the operator's capacity for innovation and the speed of technological changes;
(8) other factors related to the impact of the identified exercise of intellectual property rights on market competition.
Article 24 When the anti-monopoly enforcement agency investigates and imposes penalties for acts of abuse of intellectual property rights that exclude or restrict competition, it shall follow the procedures prescribed in the Anti-Monopoly Law, the Regulations on Prohibition of Monopoly Agreements, the Regulations on Prohibition of Abuse of Market Dominant Position, and the Provisions on the Review of Operator Concentrations.
Article 25: If an operator violates the Anti-Monopoly Law and these provisions by entering into and implementing monopolistic agreements, the anti-monopoly enforcement agency shall order them to cease the illegal conduct, confiscate the illegal gains, and impose a fine of no less than 1% but no more than 10% of the sales revenue from the previous year. If there was no sales revenue in the previous year, a fine of no more than five million yuan shall be imposed. If the monopolistic agreement has not been implemented yet, a fine of no more than three million yuan may be imposed. If the legal representative, principal responsible person, or directly responsible personnel of an operator bear personal responsibility for entering into a monopolistic agreement, they may be fined for no more than one million yuan.
If an operator organizes other operators to reach monopolistic agreements or provides substantial assistance in reaching monopolistic agreements for other operators, the provisions of the preceding paragraph shall apply.
Article 26 If an operator violates the Anti-Monopoly Law and these provisions by abusing the market ascendancy, the anti-monopoly enforcement agency shall order them to cease the illegal conduct, confiscate the illegal gains, and impose a fine of no less than 1% but no more than 10% of the sales revenue from the previous year.
Article 27 If an operator illegally implements a concentration involving intellectual property rights and it has or may have the effect of excluding or restricting competition, the State Administration for Market Regulation shall order a cessation of the concentration, require the disposal of shares or assets within a specified period, mandate the transfer of business operations within a specified period, and take other necessary measures to restore the state before the concentration. A fine of no more than 10% of the sales revenue from the previous year shall be imposed. If it does not have the effect of excluding or restricting competition, a fine of no more than five million yuan shall be imposed.
Article 28 Regarding the fines stipulated in Article 25, Article 26, and Article 27 of these provisions, when determining the specific amount of the fine, the anti-monopoly enforcement agency shall consider factors such as the nature, severity, duration of the illegal conduct, and the consequences after eliminating the illegal behavior.
Article 29 In cases where the violation of the Anti-Monopoly Law is particularly severe, has an exceptionally adverse impact, and causes exceptionally serious consequences, the State Administration for Market Regulation may determine a specific fine amount that is more than double but less than five times the amount specified in Articles 56, 57, 58, and 62 of the Anti-Monopoly Law.
Article 30 If personnel of the anti-monopoly enforcement agency abuse their powers, neglect their duties, engage in malpractice for personal gain, or disclose trade secrets, personal privacy, or personal information that they become aware of during the enforcement process, they shall be dealt with in accordance with relevant regulations.
Article 31 If the anti-monopoly enforcement agency discovers clues of suspected official misconduct or crimes during an investigation, it shall promptly transfer such information to the disciplinary inspection and supervision authorities.
Article 32: If these provisions do not provide regulations for acts of abuse of intellectual property rights that exclude or restrict competition, such acts shall be dealt with in accordance with the Anti-Monopoly Law, the Regulations on Prohibition of Monopoly Agreements, the Regulations on Prohibition of Abuse of Market Dominant Position, and the Provisions on the Review of Concentrations of Undertakings.
Article 33: These provisions shall come into effect on August 1, 2023. The Regulations on Prohibition of Abuse of Intellectual Property Rights that Exclude or Restrict Competition, promulgated by the former State Administration for Industry and Commerce on April 7, 2015, under Decree No. 74, are simultaneously repealed.