Anti-monopoly Regulation And Restriction Involving Intellectual Property Abuse

With China's admission into the WTO, intellectual property disputes involving foreign elements have emerged one after another. The DVD patent royalty case, Wenzhou lighter case, US Cisco suing Huawei case, and Intel suing Shenzhen Dongjin case, all these have imposed broad and profound influence on relevant fields of our country, including the intellectual property industry, the law circle, etc, and arouse people inside the industry, experts and learners to reexamine the intellectual system of our country, as well as the problem of anti-monopoly regulation and restriction involving intellectual property abuses. The intellectual property right needs protection. If the abuse restricts the proper competition that leads to damaging the just competition order and social public interests, the enforcement of this kind of intellectual property right will be regulated and restricted by the anti-monopoly law. With Japanese anti-monopoly regulation and restriction involving intellectual property abuse as the core, this article has carried out research on the problems existing in our country. The first part analyzes the background of the anti-monopoly regulation and restriction involving intellectual property abuses. Such as the trend that multinational corporation abuses intellectual property to limit the just competition is obviously strengthened at present; more and more intellectual property disputes arise in recent years, among which there are plenty of cases abusing the intellectual property; the intellectual property right strategy combining the standard and intellectual property together is becoming advanced strategy that the economic developed countries are pursuing after; China is improving the knowledge of intellectual property abuse regulation and restriction. The second part describes the relation between the intellectual property right and the anti-monopoly law from the theory aspect. The intellectual property right is a kind of legal monopoly right, and the basic mission of the anti-monopoly law is to object to monopoly. At the same time, the intellectual property right exists as the exception of applying the anti-monopoly law, so there is complicatedrelation between them, with consistency in some respects as well as potential conflicts. From the system aspect, the unity of them is for the purpose of improving resource distribution efficiency through stimulating people's competitive activity, thus promoting innovation and accelerating the development of economy; at the same time, reflecting on the protection of consumer's rights and interests. There perhaps exists conflict between the intellectual property right and the anti-monopoly law. Because the fundamental property .of the intellectual property right is a civil right, it is the private right, though it has a public service goal, but its main and direct goal is still for the personal profit; while the anti-monopoly law is a primary public law, taking society as the basis, mostly for the social public service goal. So the potential conflict has reflected that conflict may exist between individual right and social interests in specific circumstances; In terms of value, the basic goal of the intellectual property lies in promoting the technological innovation mainly, the basic goal of the anti-monopoly law is protecting competition or maintaining competition order to realize essential justice and society whole efficiency. The third part has classified the main expression form of the intellectual property abused in the new situation, analyzed its different expression form respective from competitive law regulating competition behaviors (dominant market position abuse behaviors, contracted limiting competition behaviors, improper economic strength concentration behaviors, etc.) and different types of intellectuals property rights (patent right, copyright, trade mark privileges, etc.) aspects. The fourth part describes the Japanese anti-monopoly regulation and restriction system of intellectual property abuse and the trend of competition policy involving intellectual property. The fifth part describes the reference meaning in the relevant legislation for our country of antitrust structure through Japan's intellectual property right abuse, to introspect the problem of anti-monopoly regulation and restriction involving intellectual property abuses existing in our country and conceive to set up the legal system with anti-monopoly law as the core to regulate and restrict the intellectual property abuse. China shall improve the knowledge of intellectual property abuse regulation and restriction, and improve our law system (especially quicken thedrafting of the Anti-monopoly Law) to regulate and restrict intellectual property abuse as soon as possible by reference to the practices of economically developed countries, such as Japan. China may compose special clauses in the Anti-monopoly Law, to definitely exclude the legitimate behavior of intellectual property from the enforcement of Anti-monopoly law and to definitely regulate and restrict the intellectual property abuse, monopoly or restriction of the competition. At the same time, China shall establish special Anti-monopoly law enforcement agency by reference to the experience of Japan, through which solve the disputes according to the guidance or rules and regulations made by the concrete conditions in different periods.