On The Application Of Competition Law To Intellectual Property

Competition is the key element of Market economy, so protecting and promoting competition is the basic object of competition law. Intellectual property (hereinafter to be referred as "IP") as legal monopoly right, generally acknowledged, is not regulated by the competition law. However, This legal monopoly rights can often make the right holder form dominant position in related market, or expand inappropriately the range of monopoly right when exercising of his IP rights. Thus restricts the competition and damages social public interests. Competition law should apply to the IP realm. While IP has double-function (promotion and restriction) to the competition. the application of Competition law to the IP is complicated. In the era of knowledge-driven economy which IP protection attached more and more importance to, how does Competition Law evolved from industrial times apply to the IP? How to hold "degree" of IP protection and restriction? These new problems face to Competition Law in many countries. Developed countries and regions have formed Competition regulation in the realm of IP, and accumulated some experience in practice. Meanwhile, they face the challenge from knowledge economy. After China joined WTO, strengthening the IP protection is a hard task. Besides, restricting the abuse of IP right is very urgent. China as a developing country, has more special legal demands to regulate IP to prevent foreign country see illegal monopolize interests. So relying on basic principle of economic law, the author uses research approach of economics analysis, comparative analysis and historic analysis to explore the necessity, generality and particularity that Competition Law's application in the realm of IP, as well as its present situation and development. the author hope the dissertation make theoretic reference to perfecting China's legislation on competition in the IP realm. According to the train of thought, this dissertation is divided into four chapters: The first chapter puts forward the necessity of Competition Law's application to the IP. The monopoly right stands and it has double influence on competition. The author analyses the main form of the anti- competition behavior in the realm of IP. Though IP Law itself stipulates some restriction, the nature of" private law" limits the regulation of IP Law. In terms of social public interests, Competition Law should apply to IP. The application of Competition Law, which has characters of policy and flexibility, can regulate effectively the anti- competition behavior in the realm of IP. To some extent, it has expanded the range of intellectual property protection.The second chapter analyses the generality and particularity of the Competition Law's application to IP. IP right have the same right foundation and exclusive jurisdiction with other tangible property right, so the general rule and principle can apply to the IP. But IP has some different legal characteristic from tangible property. Addition to the challenge from knowledge economy, The application of Competition law has some particularity : When confirming whether behavior about IP against Competition Law, the Rational Principle is more suitable, an the technological innovation factor should be fully considered.The third chapter analyses and compares the current situation of application of Competition Law aboard in the realm of IP. The author points out that the trend is: International Competitiveness is paid more and more attention and the Efficiency Principle is oriented when applying Competition Law.The forth chapter analyses China's current situation of Competition regulation in IP realm. On the analysis above, combining the China's practice, the author provides some suggestions. The key of Competition Law' application to IP is to use the balance mechanism. And the point of balance is to consider the national economic policy and current economic situation.