The Study On The Legal Regulations Of The Abuse Of Patents Rights From The Perspective Of Comperative Law

The objects of intellecutual property rights are invisible,the public can exercise rights,and the value can be realized during the same time,which means it is easy to be abused.The operators choose patents abuse,which is at the border of legality and illegality,as an important business option,in order to chase the maximum profits.It not only harms others' legal benefits,but also harms social public interests.And once combined with the standards,they can turn into international trade barriers.Since the 20 th centuty,we have experienced the DVD case,the CSCO v.Huawei case,the IDC v.Huawei case,etc,which reflected that the abuse of patents rights hurt the industries' s developments,and had bad influence on the competition order.It is necessary to regulate the abuse.But different scholars have different understandings of the abuse.Chapter One analyzes different theories,then puts forward the ‘two ladders theory',which means on the first ladder the patents rights holders intentionally improperly exercise rights,causing harms to others' benefits;and on the second ladder they further preclude and restrictcompetitions,resulting in harms to the social public interests.Meanwhile it makes distinguishments between the abuse and the monopoly,the abuse of litigation rights,the reasonable restrictions,and look into the main patterns.Why do we regulate abuse from the perspective of the jurisprudence?According to the theory of interests balance,abuse cause the lost of balance,which is realized through the mechanism of patents rights,and it is necessary to be regulated.The General Provisions of Civil LAW establishes the principle of preventing abuse of rights.Because the patents holders abuse the patents rights,which results in doing harms to the others' legal interests on the first ladder,and to the social public interests on the second ladder,it should be regulated.The theory of public policy stresses,patents rights confer monopoly during certain period in certain areas,but the abuses aren't legal exercise behaviors,and should be examined from the view of antitrust.Through the struggles between developed and developing countries,the TRIPS Agreements put forward the regulations of abuse,but the provisions prescribed can't be directly used.According to Article 7,the abuse goes against general objects.Article 8 renders the legislation rights to members.Article 40 takes the standard of restricting competitions,and reflects that the reason analysis is the best method to regulate the abuses.Article 41 pays more attention to the effectiveness of the remedies,but simply refers to the regulation of abuse of remedies.Through appropriate consideration prescribed in Article 50,the temporary measures can be used widely.These provisions can't be used to regulate abuse of remedies effectively.In January2017,the amendments to the TRIPS Agreement come into force.Beingconsistent with the Doha Declaration and relevant resolutions,it pays close attention to people's living rights in undeveloped countries,and is useful to improve the regulation rules.But at the same time,the TPP Agreements loose the regulations.The regulation of abuse has close relationship with the public policy.From the beginning the USA didn't underway the antitrust examination,although it had the antitrust law.Since the 1930's it adopted the rule of per-se illegality,and developed the Nine-No rule to examine strictly.After the1980's it adopted the rule of reason analysis to get rid of the illegality.The Article 101 and Article 102 of the European Functioning Treaty establish the basis of the competition law to regulate the abuse.Consistent with the Article101.3,the No.240/96 Regulation,No.772/2004 Regulation,No.316/2014 Regulation,develop from the three colours lists to the hard core restrions and its' exceptions,and have the tendency of narrowing the regulation scape,and expanding the exemptions.With the location of protection of utilization,the Japanese recent guideline clarifies,that use acts are generally legal,but when it has bad effects on competitions,or deviates or violates the objects of intellectual property rights,it may be examined under the antitrust law.Scattering among the laws,such as Contract Law,Foreign Trade Law,Anti-monopoly Law,etc,and relevant administration regulations,and judicial interpretations,the regulations aren't systemic,directed,and don't distinguish the two kinds of behaviors.There are few administration cases,which had limited influence on business models,because of the distribution of powers,the foggy scopes and facts standards,the unstrong evidence,the indistinctnature and judgement standards.Although some judges have the idea of removing the illegality in certain circustances,the judicial regulation doesn't work well,because the indistinct mechanism,the impositive idea,the vague remedy channels,and the diverse,but not normative evidence sources.On the basis of analysi of the examination rules in the USA,EU,Japan,the paper poses that China should take seriously account into the problem.In the light of shortcomings of the rule of reason analysis,it makes the definitions of the proportion principle,under the idea of restricting powers,and leads it into the private law domain.Then it makes a comparison between the abuse and the admistrative behaviors,investigates the possibility and real significance of regulating the abuse through the proportion principle.On the basis of clear denifinitions of the market,market dominance,it clarifies the illegal factors of different kinds of acts from the view of per-se illegality rule.Then it makes full use of the proportion principle to determine,whether there are legal factors,and which side has the stronger power.The paper makes concrete suggestions,such as the formulation of regulations accompanied with the guidance,the integration of administration powers,and the clear distinguishment between the characteristics of different behaviors and legal consequences.