The Abuse Of Intellectual Property Right And Its Legal Regulation

In the times of intellectual economy, the overflowing of lawful monopoly power of the intellectual property right (IPR) that is the economic motive force has deduced into the anti-monopoly question of the field of intellectual property in competitive realm, which has constituted the abuse of IPR. Today economic globalization continuously renovates the rules of market, and the enterprises of our country are facing the stern test. To regulate the abuse of IPR and to strike at monopoly of market of transnational corporations has become an unavoidable task in both theoretical circle and legislative circle of our country. The abuse of IPR means that the obligee of IPR exercises his own rights with the illegitimate ways and exceeds the scope permitted by laws or legitimate limitation, then leads to the improper use of this right and the damages of other and social public interests. The abuse of IPR damages the value goal of IPR law that includes the encouragement of innovation, fair competition and balance of interests. The abuse of IPR mainly includes abuse of patent right, abuse of copyright and abuse of trademark right. The abuse of patent right means the patentee abuses his advantage of patent right and damages valid competition. Besides the behavior that damages competition as abuse of patent right, abuse of copyright shall include the behavior which invades the public domain and damages the freedom of the public to acquire information. Abuse of trademark right mainly means the behavior which abuses the trademark exclusive right, prohibits from rationally using trademark, violates right exhaustion doctrine and damages competition. To regulate the abuse of IPR is the developing tendency all over the world at present and the requirement for applying TRIPS. In our country the regulation of abuse of IPR has both necessities in reality and in theory. Therefore, in order to promote valid fair competition, safeguard public interests and realize the innovative system of IPR system, our country shall use the foreign successful experience for reference, continuously perfect the inner system of IPR, draw up the anti-monopoly law as soon as possible, and construct a complete legal system to regulate the abuse of IPR.