Theoretical Analysis Of Patent Misuse

Patent system confers the patent right on patentee and protects the economic interests of patentee. By this means, patent law encourage innovation and promote the development of science and the prosperity of economy. Aim to pursue this object of patent law, in the process of patent law's enforcement, every country focus on the protection of patent right, however ignore the possibility of patent misuse. Especially in China in which the patent law is immature, the phenomenon of ignoring patent misuse is quite obvious. On the one hand, in the competition of global economy, Chinese enterprises are harmed by the transnational corporations'patent infringement suits, which actually belong to the patent misuse. On the other hand, there is no agreement and mature theory about patent misuse in the Chinese legal research field. The legislation and judicial practice about patent misuse are also insufficient. Facing these conditions, a number of Chinese people misunderstand the intellectual property law. In their view, the patent law is the tool of developed countries to control and defeat the industry in developing countries. Thus, they advocate the theory that intellectual property law is useless and unfair. This will certainly harm the healthy development of intellectual property law.The purpose of this thesis is by analyzing the theory of no abuse of right to define the patent right misuse. Moreover, by introducing the development of patent misuse theory and different criterions in different countries, we will make proposals to Chinese legislation in order to solve the problem in China.The thesis is divided into four parts. The first part is aim to seek the theoretical foundation of patent misuse. As the patent right belongs to the private right, we will analyze the abuse of right doctrine in private law as the foundation of patent misuse research. We will find that every right has two kinds of boundary: the external boundary and the internal boundary. Once a right holder exceeds the external boundary of the right, which means the righteous object of this legislation, the right holder abuses the right. Moreover, the first part analyze patent law from the object of the patent system and from the perspective of economics, to discuss the rationality and necessity of restricting the patent right.Based on the theoretical foundation provided by the first part, the second part defines the patent misuse as: patent holder impermissible attempt to extend the scope of patent law to harm the innovation of science and the development of economy. Based on the definition, we will distinguish patent misuse from questionable patent misuse. Then we will analyze several typical behaviours of patent misuse with actual cases, such as tie-in, covenant not to compete, package licensing and grant back.?The third part review and introduce the development of legislations concerning the patent misuse in U.S. To compare and analyze the two theories related to patent misuse in U.S (patent law doctrine and antitrust law doctrine), we find the advantages and shortages of each theory. Pursuant to the aim of patent law, patent law doctrine covers more scope of patent misuse; however with too much flexibility patent law doctrine does not have sufficient legal certainty. With more legal certainty, the antitrust law doctrine is more mature; however antitrust law seeks to protect competition and prevent the improper use and creation of monopoly, thus the antitrust law cannot regulate the patentee who misuse the patent right with no market power.The fourth part presents the conditions of patent misuse legislation in China and introduce the legislation related patent misuse in E.U and Japan which are both belong to the civil law system as same as China. On these bases, we will make brief proposals to Chinese legislation concerning the patent misuse.