The drafting process of various China IP misuse guidelines, circulated by National Development and Reform Commission (NDRC) and State Administration for Industry and Commerce (SAIC), have taken up lots of attention in recent months. The multiple editions of the drafts, which are all made public to local and global legal community, attracted rounds of discussions and submissions among professional groups and government agencies. At the same time, the access to the other two draft IP misuse guidelines, being drafted by State Intellectual Property Office (SIPO) and Ministry of Commerce (MOFCOM), is restrictive. Now, it is believed that all the work drafts of the IP Misuse Guidelines have been sent, if not, will soon be sent to the State Council Anti-monopoly Commission for review and consolidation. We may anticipate something for public comments later this year.
The intensive drafting work has contrasted with somewhat less aggressive antitrust enforcement activities involving IP in China. People may wonder whether China intends to make some adjustment through such rule-making process, or this is simply silence before next storm.
This article is intended to examine the motivations, the history and current status of the China IP Misuse Guidelines that are being made by multiple regulatory authorities. In particular, we will compare the two key drafts that are drafted by NDRC and SAIC in order to reveal something that signals what may come into being in the future. One interesting finding is that SAIC somehow regains attention and comes out as an equally important force, in formulating the IP misuse guidelines. All the attention that were given to NDRC, partly due to its enforcement decisions, may prove to be not so justifiable.