Chinese Intellectual Property and Technology Laws
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Chinese Intellectual Property and Technology Laws

Edited by Rohan Kariyawasam

Written by some of China’s leading academic experts and with a foreword by the former Chief Justice of the IP Tribunal of China’s Supreme People’s Court, this book combines for the very first time a review of both Chinese intellectual property and technology laws in a single volume in English.
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Chapter 12: Intellectual Property Protection and Competition Law

Xu Shiying


Xu Shiying1 12.1. INTRODUCTION With the conflict between the protection of Intellectual Property and the new Chinese Anti-Monopoly Law (AML), together with economic development and the advance of science and technology, there remains little doubt that intellectual property (IP) in China is playing an increasingly important role in global competition and is penetrating almost every level and field of international economic relations. Intellectual property rights (IPRs) comprise abstract property rights created by IP-based law. If we consider IP as a type of ‘product’, then IP laws not only stipulate how this ‘product’ is produced but also set the standard for both the import and export of IP across national borders. The World Trade Organization’s (WTO’s) Agreement on Trade-Related Aspects of IPRs (TRIPS) provides the highest degree of protection for IPRs at an international level. Also, other WTO agreements influence the manufacture, circulation and use of IP by affecting the flow of other relevant factors to the market. IPR rights holders may find themselves in a position in which they can abuse their position of dominance or engage in anti-competitive behaviour by virtue of their ownership of IP. This potential anti-competitive conduct is not only harmful to other competitors’ legal rights and interests but can also interfere with the natural order of competition and social benefits. Since regulation by IP law may sometimes be inadequate to deal with anticompetitive practices, anti-monopoly law is also necessary to compensate for any shortfall created due to potential interference by the state. China has established...

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