IPR Protection and Antitrust Regulation of SEPs in China

Liyang Hou Shanghai Jiao Tong University (SJTU) - KoGuan Law School and Mengchi Tian Shanghai Jiao Tong University (SJTU), KoGuan Law School explore IPR Protection and Antitrust Regulation of SEPs in China.

ABSTRACT: This paper explores the practice of IPR protection and antitrust regulation of standard essential patents (SEPs) in China and discusses whether the licensing of SEPs should be regulated in a way different from other patent cases. With regard to IPR protection, the Chinese judiciary has actively taken a role in patent infringement trials. Differences are observed in SEP infringement lawsuits as compared to ordinary patent cases in terms of non-infringement defense, counter-injunction defense, and damages. In relation to antitrust regulation, the Chinese competition agencies and the courts have mainly focused on price-related abuses and SEP-related merger review, and paid particular attention to the possibility of SEP holders leveraging, tying SEPs with non-SEPs, and charging high royalty fees. Since SEPs have raised a different issue than other types of IPRs, a delicate balance between protecting the private interest of the SEP holders and the public interest of standardization will have to be re-struck.