Regulation Of Anti-Monopoly Law For The Abuse Of Intellectual Property Right

The regulation of anti-monopoly law for the abuse of intellectual propertyright has become one important problem in the theoretical research on theanti-monopoly law in foreign countries. But in our country, the complicatedrelationship between intellectual property right and anti-monopoly law has notreceived enough attention. In practice, in the international market, themonopoly behaviors concerned with the abuse of intellectual property righthas exerted some influences on the Chinese economy. What is not adaptedwith this situation is that there is yet not any basic anti-monopoly legal systemin the legislation in our country and neither any systematic anti-monopolylegal system related to the abuse of intellectual property right. On this basis,the author begins with the basic problems in the abuse of intellectual propertyright; makes analysis on the relationship between intellectual property rightand anti-monopoly law; presents the theoretical and practical developmentaltrend of this problem and proposes the according solutions to the legislation ofanti-monopoly law in our country.This paper consists of three parts.The first part is concerned with the related problems of the abuse ofintellectual property right. In order to give a definition on the abuse ofintellectual property right, we should first clarify the proper exertion andrunning system of intellectual property right. Proper exertion of intellectualproperty right can effectively encourage creation and promote competition.This function has coherence to anti-monopoly law in terms of the objective.Therefore, the anti-monopoly law respects and protects the proper exertion ofintellectual property right. The abuse of intellectual property right means thatin the process of exert his or her right, the obligee of intellectual property rightgoes beyond the legal scope of the right or the obligee improperly exerts theright as to do harm to the interest of others or damage social interests. The keyto judge whether or not the abuse of intellectual property right has formed is tobalance on the interest relationship among every main body. When the obligeeof intellectual property right abuses intellectual property right; damagesothers'interests and social interests and does harm to the effective competitionin the market, he or she will have conflict and contradiction withanti-monopoly law. At this time, the behavior of abusing intellectual propertyright should be restricted by anti-monopoly law. The restriction to the abuse ofintellectual property right is not merely concerned with anti-monopoly law inone aspect. The abuse of intellectual property right should also be restricted byits own right limitation and the basic principles of civil law. These threerestrictions ensure from different angles that the exertion of intellectual rightwill not go against the original tenet. When regulating the abuse of intellectualproperty right, anti-monopoly law should adapt itself to the uniform standardand legal principles and meanwhile in practice gives consideration to its owncharacteristics in combination with specific case.The second part reviews and analyses the specific systems ofanti-monopoly law and intellectual property. First of all, we should calcify thefact that enterprises'possessing intellectual property does not equal to theirhaving the market dominant position. To judge whether or not the enterprisespossessing intellectual property have the market dominant position, we shouldfollow the general methods defining market dominant position and meanwhileconsider some new characteristics intellectual property has brought. By meansof analyzing the verdict of Microsoft monopoly case, the author thinks that inorder to confirm the market dominant position, the market share should beprimarily considered and more important, the Barriers to Entry should begiven consideration. To possess intellectual property does not equal to havingmarket dominant position. Although the enterprises obtain the marketdominant position through intellectual property, they do not breakanti-monopoly law. Only when enterprises have the behavior to abuse themarket dominant position should they be prohibited by anti-monopoly law.This trend is more obvious in the information industry. Accordingly, in theaspect of sanctions, it is relatively proper to take the measure to lay somerestrictions to the abuse of intellectual property right generally speaking. Thenthe author makes an analysis on the exertion of intellectual property right andthe abuse of the market dominant position. The author mainly discusses therefusal to license and tie-ins in the exertion of intellectual property right incombination with cases. The enterprise holding the market dominant positionhas no obligations to license its intellectual property to other enterprises. But ifit through refusal license to restrict competitions and buck for and enhance itsmonopoly status, it will break anti-monopoly law. In judging whether thetie-ins is against anti-monopoly law, we mainly apply rule of Reason. Whetheror not having the market dominant position and the connection amongproducts is the factor which should be given more consideration in thecognizance of tie-ins. In the analysis of the relationship between licensing ofintellectual property and collusive restriction of competition, the author pointsout that the licensing of intellectual property has both functions of promotionand obstruction for competition. What anti-monopoly law aims to prohibit isthe licensing of intellectual property which seriously imperils competitions.There are definite analyzing methods to be followed to judge whether or notthe licensing of intellectual property breaks anti-monopoly law. First of all, weshould consider whether or not the restriction in the licensing of intellectualproperty goes beyond the scope of intellectual property. The restriction goingbeyond the scope of intellectual property surly breaks anti-monopoly law.Secondly, the relationship between the licenser and the licensee should beconsidered. It is generally thought that when the parties have lengthwaysrelationship, the possibility for the licensing agreement between them torestrict competition is small. The vertical restrictions in the licensingagreement of intellectual property exist in a large amount. Then the authormakes an analysis on two aspects of price restriction and non-price restriction.As can be seen in some regulations of anti-monopoly law and some cases inforeign countries, the attitude anti-monopoly law takes towards pricerestrictions in licensing agreement in intellectual property is very strict andsevere. Anti-monopoly law will not exempt any behavior breaking itsprinciples and regulations. As to the non-price restriction in licensingagreement in intellectual property, the attitude of anti-monopoly law is usuallyrelatively slack. There is the need to make the analysis according to specificsituations and some which can be applied with rule of Reason or regulationscan be exempted.The third part discusses the legislative attitude of the regulation ofanti-monopoly law towards the abuse of intellectual property right. The authorfirst introduces the legislative regulations of anti-monopoly control to theabuse of intellectual property right in the USA, the European Union, Japan andTaiwan area in our country. As can be seen, every country gives stresses tomake use of ant-monopoly law to regulate the abuse of intellectual propertyright and has formed their own characteristics. We should learn the reasonableelements for reference in those regulations and avoid their defects. Relativelyspeaking, the practices in Japan and Taiwan area in our country are moresuitable for our country to learn for reference. At present, our country has thebehavior of intellectual property right abuse. With the economic development,this kind of behaviors is likely to expand. Some current laws and regulationsconcern the problem of intellectual property abuse from different perspectives,but their applicable scope is limited and their content is not systematic and not...