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Adequacy and Scope for Improvement Bangor University DOCTOR OF PHILOSOPHY Technology transfer in the context of competition Law in the Modern Chinese Market: Adequacy and scope for improvement Lin, Xu Award date: 2017 Awarding institution: Bangor University Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 04. Oct. 2021 Bangor University TECHNOLOGY TRANSFER IN THE CONTEXT OF COMPETITION LAW IN THE MODERN CHINESE MARKET: ADEQUACY AND SCOPE FOR IMPROVEMENT Xu Lin Thesis submitted to Bangor University for the degree of Doctor of Philosophy June 2017 I TECHNOLOGY TRANSFER IN THE CONTEXT OF COMPETITION LAW IN THE MODERN CHINESE MARKET: ADEQUACY AND SCOPE FOR IMPROVEMENT ___________________________________________________________________ II Abstract ABSTRACT Technology transfer is crucial for China to gain advanced technology so as to facilitate its economy’s growth, as well as to improve its enterprise’s competitiveness. However, anti-competitive restrictions imposed on technology transfers not only severely restrict or eliminate the competition but also limit the technological advancement of China. The existing legislation was considered to be insufficient for effectively intervening in these technology transfer issues in China and requires much improvement. Above all, this thesis discusses how the application of competition law to technology transfer can achieve innovation, efficiency, and consumer welfare, and advocates the exploitation of an effects-based approach to assess the intervention of competition law with intellectual property rights (IPRs). The thesis observes that a number of anti- competitive issues have occurred in the Chinese technology market. Nevertheless, Chinese legislation on the interface of IPRs and competition law has been delayed, which is one of the reasons for the inadequacy evident in the historical review. Whilst the existing legislation cannot properly address these issues. Finally, the thesis provides proposals with comprehensive guidelines for China to deal with some primary anti-competitive issues, including price fixing, price discrimination, allocation of markets, tying, grant-back, and refusals to license. Based on an effects-based approach, the proposals draw on the experiences of the United States and the European Union, whilst also considering China’s unique characteristics. In sum, China requires guidelines that embody an effects-based approach, far more nuanced and sophisticated than current provisions, in order to address these complex and troublesome issues involving the interface of IPRs, competition law, and the effective operation of a modern, technology-dominated market. III Concise Contents CONCISE CONTENTS ABSTRACT………….. ............................................................................................... III CONCISE CONTENTS ............................................................................................. IV TABLE OF CONTENTS ............................................................................................. V LIST OF FIGURES…. ................................................................................................ X LIST OF TABLES…… ............................................................................................... XI TABLE OF LEGISLATION AND RELATED INSTRUMENTS.......................................... XII TABLE OF CASES…. ............................................................................................. XIX ACRONYMS AND ABBREVIATIONS ................................................................... XXVII ACKNOWLEDGEMENTS .................................................................................... XXXI AUTHOR’S DECLARATION AND CONSENT ....................................................... XXXIII CHAPTER 1. INTRODUCTION ............................................................................... 1 CHAPTER 2. EFFECTS OF COMPETITION LAW ON TECHNOLOGY TRANSFER: INNOVATION, EFFICIENCY, AND CONSUMER WELFARE ......................................... 39 CHAPTER 3. SEVERE ANTI-COMPETITIVE ISSUES IN TECHNOLOGY TRANSFERRED FROM ABROAD ALONG WITH A RELATIVELY QUIET DOMESTIC TECHNOLOGY MARKET…………… ................................................................................................. 70 CHAPTER 4. THE TARDY AND UNEQUAL DEVELOPMENT OF IPRS AND COMPETITION LAW IN CHINA HAS DELAYED THE PROGRESS OF INTERFACE BETWEEN THE TWO LEGAL SYSTEMS OCCURRED IN TECHNOLOGY TRANSFER: A HISTORICAL REVIEW ............................................................................................ 94 CHAPTER 5. THE INADEQUACY OF CURRENT COMPETITION LEGISLATION FOR ANTI-COMPETITIVE ISSUES IN TECHNOLOGY TRANSFER IN CHINA ...................... 136 CHAPTER 6. PROPOSALS FOR DEALING WITH ANTI-COMPETITIVE ISSUES WHEN TECHNOLOGY OWNERS TRANSFER TECHNOLOGY IN CHINA: THE EXPERIENCES OF THE US AND THE EU……….. ................................................................................. 159 CHAPTER 7. PROPOSALS FOR DEALING WITH REFUSALS TO TRANSFER TECHNOLOGY IN CHINA: THE EXPERIENCES OF THE US AND THE EU .................... 285 CHAPTER 8. CONCLUSION .................................................................................. 328 BIBLIOGRAPHY…… ............................................................................................. 354 APPENDICES..……… ............................................................................................. 406 IV Table of Contents TABLE OF CONTENTS ABSTRACT………….. ............................................................................................... III CONCISE CONTENTS ............................................................................................. IV TABLE OF CONTENTS ............................................................................................. V LIST OF FIGURES…. ................................................................................................ X LIST OF TABLES…… ............................................................................................... XI TABLE OF LEGISLATION AND RELATED INSTRUMENTS.......................................... XII International Conventions and Agreements ................................................ XII National Legislation......................................................................................... XII China Legislation ..................................................................................... XII US Legislation........................................................................................... XV Other National Legislation .................................................................... XVI EU Legislation ................................................................................................. XVI EU Treaties .............................................................................................. XVI EU Directives ......................................................................................... XVII EU Regulations ...................................................................................... XVII EU Notices/Communications .............................................................. XVII TABLE OF CASES…. ......................................................................................... XIX China Cases...................................................................................................... XIX EU Cases............................................................................................................ XX US Cases ......................................................................................................... XXII ACRONYMS AND ABBREVIATIONS................................................................ XXVII ACKNOWLEDGEMENTS................................................................................. XXXI AUTHOR’S DECLARATION AND CONSENT ..................................................... XXXIII CHAPTER 1. INTRODUCTION .............................................................................. 1 1.1 Objectives and Background .......................................................................... 1 1.2 Structure and Scope .................................................................................... 10 1.2.1 Structure ............................................................................................. 10 1.2.2 Scope .................................................................................................. 19 1.3 Literature Review ......................................................................................... 28 1.3.1 The Relationship between IPRs and Competition Law ................. 28 1.3.2 Anti-competitive Issues in Technology Transfer in China .......... 30 1.3.3 Application of the AML to Regulate Anti-competitive
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