Studies On Antimonopoly Issues In The Field Of Intellectual Property

Subject to the case of American judiciary v. Microsoft Company, we have focus on the antimonopoly issues in the field of intellectual property (hereinafter to be referred as 'IP'). The research and legislation on the antimonopoly field must be also applied to the IP field. With this purpose, the author writes this dissertation.The first reaction when I see this problem, as anyone else, I consider that the two statutes are opposite. The IP law, which is belong to the 'private laws', grants the legal monopoly right to the right holder to protect his or hers private interest. Such legal right dose not restricted by any other laws, include antimonopoly law. As an important statute of the 'public laws', the antimonopoly law is to protect the market operation smoothly under free competitive condition, and restrict all kinds of illegal monopoly behaviors. Evidently, there are conflicts between authorized monopoly right by the IP law and restricted monopoly right by the antimonopoly law.With a gradual research in this field, the author finds that the two laws both are in order to promote the efficiency. Notwithstanding, there are conflicts in these two laws; they can be consolidated under the principle of efficiency. Antimonopoly law will have the right to restrict the IP right holder's abuse actions. The principle of efficiency is the rule that both laws must be follow, and this principle is also the main clue of this article.The purpose of the authorized monopoly right in the IP is to stimulate the durative creativity action, promote the technique and provide motivity and fuel to the economic development. With the nearsighted research, the IP law is to protect private interest, while with farther study, we can find that the deep-seated target of this law is to realization the social interest. The result of the abuse the monopoly right, which will harm to the public interest and lead to decrease of whole social efficiency, is conflicted with the original intention of the IP law. In consideration of balance the interest of the private and the public, the IP law itself arranges the system to restrict the abuse actions, example, the principles of time proviso, compel license and reasonable use. Under the principle of efficiency, the IP monopoly right isn't an absolute monopoly right and the user of this right must be complied with IP law itself.The efficiency, which the antimonopoly law is to pursue, is the whole social efficiency under the free competitive condition. Competition, which achieve favorable resource allocation, is a necessary term to promote the whole social efficiency, while monopoly action or state destroy this ideal market condition, leading to decrease of the social efficiency. In order to recover the orderliness market condition and promote social efficiency, the antimonopoly law, which act as 'economic constitution', prohibits and punishes the monopolistic actions. It's important to decide the principles to regulate the IP monopoly actions. The fact that the IP right holder has the legal monopoly right will not induce the conclusion that the IP right holder has the dominant market power, even if the IP right holder has such position, the dominant market position itself is not illegal. When the IP right holder has monopoly position and use this position to prevent new enter or supplant old enterprise which is competitive with itself, antimonopoly law will prohibit and punish such action, without reference to the IP law. The principles of itself illegal and reasonable analysis in the antimonopoly law are the main yardsticks which will use to deal with material abuse actions.The article also introduces the IP protection and antimonopoly law in the United States, EU, Japan, Germany and Taiwan, in order to provide necessary and useful information to set up our country's antimonopoly law system. Aiming at law vacancy and IP right holder use such vacancy to abuse monopoly right, the author gives advice on lawmaking.