Legal Regulation On Abusing Intellectual Property Right

With the times of knowledge and economy coming, intellectual fruits have been main tools in competition among enterprises, at the same time, the intellectual property right (IPR) law system as a means of protecting intellectual fruits has been paid more attention to by countries and enterprises .IPR system is used to encourage innovation and accelerate the exploitation and utilization of intellectual products by granting some reasonable monopoly right to oblige. Right has distensibility naturally, so does the IPR. Furthermore, for possession of legal monopolization right, obligee will be likely to expand his monopolization right improperly which gives birth to the abuse of IPR. With the step of economy globalization being quickened, more and more multinational companies abuse IPR to monopolize the market and push aside the competitors by making use of their advantageous positions in field of high technique, which challenges Chinese enterprises. How to respond to the threat resulting from abusing IPR by multinational companies; and how to regulate the abuse of IPR effectively, which have been issues to be settled as soon as possible both in theory and practice.The paper shows the problems of abuse of IPR and its legal regulation in theory analysis and demonstration research, trying to pose opinions and perspectives to solve the problems. The paper comprises four parts:The first part, IPR: a reasonable monopolization. IPR is a special civil right, the reason why the law endow it reasonable monopolization is the object of IPR, that's intellectual fruits, which have dual characteristics of public and private articles. For such special characteristic, if not given the protection of the reasonable monopolization to obligee , the devotion of intellectual and material resources can not be ensured.The second part, theoretical analysis in the abuse of IPR. 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, which leads to the improper use of this right and the damages of others and social public interests. When distinguishing the exercising and abusing IPR, we can weigh them in whether it goes beyond the regulation and accords with the value target pursued by law or not. The abuse of IPR mainly includes abuse of the dominate position of market, united restrained competition permitted in IPR and control action in enterprises combination.The third part , demonstration research in legal regulation of the abuse of IPR. By reviewing and analyzing legal rules about regulating the abuse of IPR from the TRIPS agreement in WTO, anti-trust law in the USA, competition law in European union, forbidden monopolization law in Japan and fair deal law in Taiwan of our county, we can absorb useful experiences from legislations and practices abroad.The fourth part ,the actuality and perfect of legal regulation of the abuse of IPR in our country. The author Analyzes the reason which leads to the abuse of IPR and the necessity regulating. At the same time, the author enumerates laws about legal regulation of the abuse of IPR and narrating the functions of them. As a whole, the laws about regulation of abuse of IPR existing in our country are not obvious and can not control the abuse of IPR. Regulating abuse of IPR should follow three principles: uniting the encouraging innovation and promoting knowledge spread, balancing the interests of obligee and the public, balancing the cost and revenue of law. In a word, constructing the law system of regulating abuse of IPR in our country should perfect the current intellectual property laws, and especially refer to other countries advanced experiences, and make special rules to regulate it.