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Intellectual Property Restrictions Under Competition Law

Posted on:2006-08-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:L Z NingFull Text:PDF
GTID:1116360182467694Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Intellectual property is a kind of legitimate monopoly, which should be used properly or else would break healthy competition order and result in the intervention of competition law furthermore. However, it's difficult to differentiate right-use from misuse, which needs economic weighing, in account of legal values and experiences. It's from these aspects that this article is developed and advices are brought forward.The full text is composed of five chapters.Chapter 1 centers on the theoretical analysis of intellectual property restriction, which establishes the theoretical basis of intellectual property restriction in three approaches. Section 1 makes an economic analysis of intellectual property restriction. The author reveals proper protection of private rights is necessary based on the characters of intellectual property right, i.e. some exclusion and commonality. However, considering the balance of interests, the principle of interactive between private rights protection and private rights restriction should be established. The former is the precondition of the latter, while the former is restricted by the latter. The externality born of intellectual property protection provides economic evidences for intellectual property restriction system. Section 2 makes an analysis of legal values contained in intellectual property restriction. The author explores special value mode of intellectual property system, i.e. individual and society oriented dualistic structure, which is aimed at protecting individual interests and promoting public interests as well, achieving fairness and justice in the course of distributing moral resources. Section 3 makes an analysis of the game between intellectual property and free competition, which reveals that the conflict and harmony between monopoly protected by intellectual property law and competition protected by competition law embodies the game between individual interests and public interests. The whole interests of society should be supreme in this game, which is the purpose of the competition law restriction of intellectual property.Chapter 2 explores the legal system of intellectual property restriction. This chapter outlines the sources of intellectual property restriction system, which include basic principles of civil law, intellectual property law and competition law. "As the internal restriction of private law, the restriction of civil law and intellectual property law is ofgreat importance and some disadvantages as well, which necessitates the supplement of external competition law restriction which is a kind of public law. Section 1 explores the restriction of civil law basic principles. This section centers on the meanings, main legislations, relationship with the honest and trust principle and its applying to intellectual property of misuse-forbidden principle, and points out that intellectual property misuse means that the owner or holder of intellectual property goes beyond the legal or proper scope of right, exercises intellectual property unjustly or unreasonably in breach of public policy and acquires license in a fraudulent manner, which provides unjust protection for individual interest at the expense of damaging others' interests. Section 2 explores the restriction of intellectual property law, which centers on patent restriction, discusses respectively the institution of patent expiration, validity termination, validity denial, compulsory license, planned license of the exercise of patent, patent exhaustion, non-intent infringement, prior use, temporary transit, rational use and so on. Section 3 explores intellectual property restriction of competition law, which makes a primary discussion on both contrary and cooperative relationship between intellectual property law and competition law, and makes a rough list of intellectual anti-competition behavior so as to make a typology preparation for the following comparative study, which includes: sending warning letter of infringement improperly, refusal to license, tie-in, package license, charging improper royalty, price discrimination, cross license, collective price restriction, non-price restriction in license contract such as quantity and quality restriction, territory restriction, licensee restriction, field of use restriction, non-competition restriction, exclusive grant-back restriction, and improper collection of intellectual property.Chapter 3 and 4 review respectively the relationship between patent exertion and competition law under the constructionism of US and Japan and the conductism of Germany, EU and Taiwan. Under US anti-trust law, patent system evolves from completely free, via strict restriction, to dynamic balance, abundant with rich judicial experience; Japan Monopoly-forbidden Act and Norm Related to the Using of Injustice Trade Methods in Patent and Know-how License Contract enacted by Justice Trade Committee makes principle and concrete regulations on patent misuse; in Germany, patent abuses include: patent collection, restricting competition by license contract, patent pools and so on, which are regulated by Anti-competition Prevention Act. This Act is famous for its strict provisions on monopoly conducts and its Section 22 provides forconcrete regulations on patent rights use and competition law restriction. European competition law establishes two principles on the exercising of patent rights: principle of differentiating patent existence from using and principle of patent exhaustion, which evolves from Article 85-86 of European Union Treaty, to Commission Regulation(EC) No. 240/96 of 31 January 1996 on the Application of Article 85(3) of the Treaty to Certain Categories of Technology Transfer Agreements, then to Commission Regulation(EC) No. 772/2004 of 27 April 2004 on the Application of Article 81(3) of the Treaty to categories of Technology Transfer Agreements. In Taiwan, the relationship between intellectual property and fair trade law is mainly regulated by Article 45 of Fair Trade Law which is criticized for its abstract.Chapter 5 explores the design of China's system. Based on the above theoretical and practical analysis, the author thinks that patent system is consistent with anti-trust system in some functions, i.e. promoting innovation, stimulating competition and increasing the consumer's welfare, while patent system is contradictory to anti-trust system in protected interests, i.e. the conflict between private interests and social interests, in this game, the harmonization of these two systems should be achieved. So when designing China's system, the proper exercising of intellectual property should be exempted and the illegal abuse of intellectual property should be regulated. As to exemption rule, it should apply to two behaviors, i.e. the exercising of patent itself without affecting competition and the action of some matters outside of panel right without affecting competition substantially, on conditions that they are lawful and due. As to regulating system, the following behaviors should be regulated: price restriction, charging improper royalty, quality and quantity restriction, improper territorial restriction, licensee and custom restriction, field of use restriction, package license, grant-back license, not to challenge validity of patent forbiddance, tie-in, cross license and patent pools; and the regulating mode should be a kind of dualistic model based on anti-trust law, combined with patent law. Finally, the author gives some suggestions on restricting patent misuse by anti-trust law in account of the difficulties exposed to Chinese enterprises.
Keywords/Search Tags:intellectual property restriction, intellectual abuse, patent abuse, competition law restriction
PDF Full Text Request
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