| In the new economic era, the progress of intellectual property rights (IPR) has become very common. To a great extent, such progress has already evolved into the driving force behind the sustainable development of our economy and society and has also influenced our general public and various aspects of society. PR institutionalizes the belonging of intellectual property, aiming to encourage intelligence innovation and to provide incentives for its spread and commercialization. Or it can be summarized as "to add the’Interest’oil to the ’Intelligence’fire. However, an intelligence property is self-conflicted intrinsically. On the one hand, it is the intelligence product of the inventor, whose exclusive characteristics are contained inside. On the other hand, the property also reflects the consistency of human knowledge. As a component of human knowledge multiplication, the property bases itself on the intelligence product of the former people and also acts as a new base for future intelligence. What’s more, it also improves social benefits. Therefore, the IPR system based on the intelligence property inevitably has a "double-edge" effect with different interpretations of its content in different levels.Putting aside the utilitarian and technical perspective, in reflecting and exploring the IPR system, we need pour attention into the perspective of fairness, that is, maintaining the social order. In this regard, the competition effect of IPR must be governed by the law. In accordance with the IPR law, the IPR holder has such an exclusive right of controlling and utilizing his own intelligence property. Therefore, the IPR has become a tool for him to gain competitive edge, to control rivals and to get much more benefit.In recent years, multinational companies have frequently and skillfully adopted IPR strategies in China. They have abused the dominance of IPR to restrict the competition and technology proliferation between the assignee and the third-party. Their tricks includes license refusal, tie-in sale, high pricing, mandatory license package,"patent array" and restricting defenses against the effectiveness of the IPR concerned. We are flooded with a lot of facts, such as the "private agreement" in the IPR conflict between Cisco and Huawei, the copyright infringement and technology monopoly conflict between Intel and Donjin, monopoly conflict between Dexian and Sony and so on.Actually, the abuse of IPR’s dominance by these multinational companies is obviously contrary to the original intention of setting up IPR, which is to protect and promote the innovation. What’s more, such behaviors also extremely distort the market order, endanger healthy development of our national industries and harm the consumer welfare. Unfortunately, we fail to see deep research into this topic in our academic circles. Our academics often separate the antitrust law and the IPR law in their research. Either they regard the object IPR "exempted from" those antitrust laws, or they just mention that the exclusiveness of IPR to some extent means monopoly. While in legislation and judicial practice, due to the late antitrust law, we are still waiting the guide on and typical case of IPR-related antitrust law.For that reason, the researcher chooses "the abuse of market dominace", one of the three pillars of antitrust law system, and combines it with IPR to conduct a deep and systematic research. Such a combination helps to research antitrust law deeply and precisely. The researcher will reveal the delicate relationship between IPR and the antitrust law, track and grasp the latest news about its international legislation and judicial practice, discusses the legal monopoly of IPR holder and the interest balance between competitors. Besides, the researcher will also meet the public’s reasonable requirement, mediate contradiction and put forward the legal principles and concrete regulation structure to be followed when regulating the abuse IPR’s dominance, so as to improve the theory of antitrust law. Meanwhile, the researcher also expands the research space for IPR and increases its strictness and scientificity. Revolving on these purposes, this paper will discuss from the following6chapters.In the first chapter, the researcher studies the cross of PR and antitrust law. Firstly, the researcher analyzes "The Tragedy of the Commons" and "The Tragedy of the Anti-commons", which are typical to the PR field. Then, the researcher also conducts the connotation analysis on the IPR monopoly. Based on this, the researcher takes right limitation theory as the main line and discusses jurisprudence foundation for IPR antitrust law. In the second chapter, the researcher conducts a historical and dynamic reflection and judge of legislation and judicial practice of antitrust implemented by the United States and European Union to restrict the abuse of EPR’s dominance. The United States is the origin of IPR system and antitrust system. Apart from many traditional antitrust laws, it has also issued a series of practical guides and it has also shown us evolution, correction and progress on the antitrust practice in the field of patent, copyright, trademark and others. Correspondingly, the European Union has also made remarkable achievements in this field. In addition to deepening the recognition of relationships between EU competition laws and the protection of IPR, EU commission also releases many regulations, notifications, guides and other secondary legislation files. Especially, it issues Communication from the Commission---Guidance on the Commission’s Enforcement Priorities in Applying Article82of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings and officially introduces the economic analysis. Since then, the principle of "effect influence" has become a more rational judge to investigate the abuse of IPR’s dominance.In the third chapter, the researcher explores the definitions of the market relevant to IPR. The IPR-related market is not only a space/time condition necessary for market competition, but also a precondition to identify the IPR-conflict-related market scope and to judge the existence of monopoly in such a scope. To understand this problem, we should first investigate the uniqueness of IPR-related industries and its influence on the definition of relevant markets. Then, we should start from the product dimension and the geological dimension to analyze the demand substitution and the supply substitution. Coupled with SSNIP test, we can give a more scientific and standard definition of IPR-related market.In the fourth chapter, the researcher researches the PR’s dominance and its abuse. In practice, we should hold tightly the idea that "holding IPR does not mean holding the dominance". But the holding and utilization of IPR may abuse the concept of its market dominance. In other words, only when a party abuses the market dominance of IPR and harms the competition, he can be governed by the antitrust law. In defining the IPR’s market dominance, we can import some relevant measurement standards, such as Lerner index, Industry concentration index and Herfindahl-Hirschman Index to give a more accurate measurement and calculation. Apart from that, we should also summarize the legal characteristics of that abuse and compare and balance the different appropriation of illegal judge principles.At last, we can promote an unvaried-series judge mode.In the fifth chapter, the researcher chooses some recent and representative cases in EU and the United States to investigate some typical behaviors of abusing IPR’s dominance. Those behaviors include tie-in sale, license refusal, price discrimination, predatory pricing, high pricing and the abuse of PR system. Besides, the researcher deeply explores the components of these behaviors and its corresponding antitrust regulation.In the last chapter, the researcher focuses on China’s antitrust regulation practice on IPR’s dominance. First, the researcher takes some typical cases to picture the urgency of China’s regulation of this abuse. Next, the researcher judges China’s already-existed antitrust laws, reveals their shortcomings and independently reflects the improvement of system in this field. The researcher proposes to regard social justice, order and public interest to be the philosophy of preventing the abuse of IPR. He also proposes that China should follow European countries, the United States and other regions to issue some relevant guides to guide the antitrust judicial practice. According to the researcher’s proposal, China should introduce economic-analysis-oriented review mechanism; improve the structure of key-facility-theory-based IPR compulsory licensing system and abusing-behavior-caused liability system. Meanwhile, the defenses from the related IPR holder should also be taken and antitrust exemption should be given to him when his actions are necessary and can substantially increase efficiency. |
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