The Regulations On The Abuse Of The Patent Right By The Antitrust Law

Patent right, which itself has the legal characteristic of monopoly, is a legal monopoly power and is generally considered as the exception of the antitrust law. But in some circumstances the patentee may abuse this right to illegally restrict the competition, which consequently may violate the antitrust law. Especially in this new situation of the knowledge economic age, the status of the patent right in the economic and social life will become more and more important and the issue of the abuse of patent right will be more and more obvious. So it is of great significance to regulate the abuse of patent right , especially by the antitrust law, which is also one of the basic spirits of the TRIPS.On June 7th 2006, the Executive Meeting of the State Council, discussed and basically passed the PRC Antitrust Law (draft), and it decided to put forward the draft to the Standing Committee of the National People's Congress for discussion after further modification. Although the draft has not been passed and implemented up to now because of many different opinions, the draft's basic spirit of regulating the monopoly action in the field of the intellectual property right and the practice that the specific content of regulation has only one basic article becomes the common grounds of all parties. So it's practically meaningful to study the regulation system of the abuse of patent right under this background.First, the essay starts with the formation, the development and the function of the patent system, restates its monopoly characteristic, and advances the further statement based on this characteristic in the later part. Then, it starts with the damage of the abuse of patent right and the relationship between the abuse and the monopoly regulated by the monopoly law, and mainly analyses the necessity and practical feasibility of regulating the abuse of patent right by the antitrust law. Then, it introduces some several main countries and regions'mature experience and practice of regulating the abuse of patent right by the system of antitrust law, which arose some reflections on the relevant issues of establishing our countries'regulation system on the abuse of patent right by the antitrust law. Further more, it points out the shortcomings of the sorting method of identifying the types of the abuse actions with the three action types regulated by the antitrust law and concludes the specific manifestation of the abuse actions which should be regulated by the antitrust law. In the end, the essay analyses the actuality and the shortcomings of China's actual system of antitrust law on regulating the abuse of patent right and proposes some suggestions on improving China's system of antitrust law on regulating the abuse of patent right by comparing and analyzing the experience and practice of some main countries and regions.