EU Antitrust review of refusal to license IPR: its potential for China

摘要

Striking a proper balance between unilateral exercise of intellectual property rights on the one hand and competition rules on the other hand is not an easy exercise. The right owners’ unilateral behaviour of refusal to license is one such delicate issue, particularly for China considering that it has not been clarified within existing competition rules how to assess a right owners’ specific unilateral practices. The EU courts have established in a series of cases the exceptional circumstances in which the right owners’ refusal conduct might be considered as an infringement of EU competition rules. In general Chinese competition law has, in many respects, modelled after the EU competition rules. This research firstly examines the EU approaches on dominant undertaking’s refusal to license intellectual property rights and the follow-on pricing issue, and then explores to what extent the EU model could contribute to China’s anti-monopoly practice.