Regulation Of Eu Competition Law On Ipr Holder's Refusal To License And Its Revelation

We focused on"the Regulation of competition policy on IPR Holder's Refusal to License"under New Economy background. From examination on the practice of European Union Competition Law, we would like to address three following questions, first, the relation between IPR Law and Competition policy; secondly, the rules of regulating IPR Holder's Refusal to License; thirdly, its revelation to China's related institution. This paper consists of three parts.Part I. Analyzing from the point of IPR as exclusive right, shows that in most cases Refuse to License is justified, and only when the Refusal behavior threat to effective competition and harm consumer interests, it should be examined by competition law. Especially on influence of network effects and other characteristics on New Economy background, IPR Holder's Refusal behavior may has a more significant impact to effective competition, undertakings innovation incentive ,and ultimately to consumer welfare. Finally, Classify possible types of IPR Holder's Refusal behavior. And limit this article's discussion to unilateral Refusal to license.Part II. Analyzing relevant legislation and cases of EU Competition Law, and Its attitude to "essential facilities" theory shows that the related practice of EU is not a consistent process but a case by case analysis. And in this process, EU Commission and the courts are not consciously to apply or develop "essential facilities" as a doctrine in case law. This strategy supplies a very important space for future practice. Thus, EU Commission and the courts can make flexible interpretation on the"The Treaty of Lisbon"Article 102 (the original "EC Treaty" Article 82) to deal with new circumstance emerging in future case. Therefore, we must take a more cautious attitude when draw attention to the practice of EU.Part III. Analyzing about Legislative goals of China's anti-monopoly law and IPR laws and combining domestic industrial innovation status show that special significantance of anti-monopoly law regulation to IPR Holder's Refusal to License in China.Then, analyzing the Communications from the Commission- Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ C45/7, 2009.2.24). And compare with China's related insititution in five aspects including general standpoint, market power identified, anti-competitive foreclosure, due reasons and legal responsibility. Above-mentioned analysis manifests reference value between EU and China practice, from rules interpretation, legislation and enforcement attitude, different market conditions and other factors.Conclusion section is an overall review. Although facing different market environment, we can clearly see the common careful attitude of EU and China enforcement agencies. This reflects the balance among undertakings, consumers and public authorities. Furthermore it is a response to the theme, that people pursue balance between total welfare and private interest by IPR and antitrust system in history, which has been stated at the beginning of this paper.