Regulation Against The Refused Permission Of Intellectual Property Right Through The Anti-Monopoly Law

China's anti-monopoly law passed on August 30, 2007, the significance is great, but we find that the anti-monopoly law directly related to intellectual property right (short for IPR) only a term (Article 55). When China joining the WTO, the Western countries showered us to instil awareness of the protection of IPR, the Government also fully promote intellectual property protection. but the protection of intellectual property can't no boundary, when an enterprise by virtue of its monopoly status, unreasonably restrain competition, it is necessary to subject to legal restrictions. Therefore, China needs to strengthen protection of IPR, China also needs anti-monopoly of IPR which we have paid insufficient attention. Now the multinational corporations in the high-tech field to use its monopolistic position in the abuse of IPR has increased, such as DVD matter, Cisco v. Hua wei case, De xian v. Sony case, such cases will be occur in the future, anti-monopoly of IPR is becoming an important task of anti-monopoly law, regulations related to it must be developed and perfected.There are many types of abuse of IPR, such as tie-ins, high price, refused permission, and so on. This paper simply choose one of the typical types which is refused permission of IPR to start discussion, chose this point, because there are many types of IPR abuse, it is impossible to everybody, only a small point can be written in specific detail, and the other is that refused permission is difficult in anti-monopoly of IPR, because the exclusive and monopolistic characteristics of IPR means that the refused permission is one of the legitimate right of the owner of IPR. Therefore how to draw a line between legal and illegal, both to protect of IPR and maintain market competition is difficult, that is why all countries is prudent to refuse permission and also consider more factors.The first chapter of paper is started from the Cisco v. Huawei case suggested that the necessity of the anti-monopoly of the refused permission of IPR, and then introduce the concept and classification of the refused permission of IPR, in order to determine the scope of the discussion in this paper, analyze the reasons for the difficulties of the anti-monopoly of the refused permission of IPR, discuss the theoretical basis of the anti-monopoly of the refused permission of IPR from four perspectives.The second chapter introduces and compare the judicial practice between the United States and the European Union in the anti-monopoly of the refused permission of IPR, by comparison we can find that they have different tendencies, the United States focused on the protection of the interests of the owner of IPR, and the EU has a stringent regulatory system in the anti-monopoly of the refused permission of IPR, which also reflects the characteristics of the policy of anti-monopoly law, safeguarding national interests and the country's economic development, is the fundamental purpose of the anti-monopoly law.The third and forth chapter are the emphasis and the difficulty of this paper, introduce and analyze the Essential facilities doctrine (EFD) which is used in the judicial practice of the anti-monopoly of the refused permission of IPR in Europe and the United States. The third chapter introduces the origin of EFD and the feasibility in the anti-monopoly of the refused permission of IPR. The forth chapter focuses on the criteria of the EFD, that is to say what conditions can constitute the abuse of IPR, I think any antitrust judgment can be divided into two steps, the first step that is to establish its dominant market position(mainly through the relevant market, market share, barriers to entry), this step is not difficult; the second step that its conduct constituted abuse is the difficulties, this paper analyzed the four conditions of the EFD focused on the cases of Europe and the United States:1.The facility for other enterprises to participate in the competition is essential; 2.A competitor's inability practically or reasonably to duplicate the essential facility; 3. the denial of the use of the facility to a competitor; 4. the feasibility of providing the facility.The Fifth chapter is legislative proposals, first introduce the country's status quo of the refused permission of IPR and the current legal documents to regulate this abuse of IPR, then introduce the legislative mode of the anti-monopoly of the refused permission of IPR, and proposed legislation from abroad mode, first in the anti-monopoly law in terms of principle, which is the basis for the " anti-monopoly laws of intellectual property permission", and in which regulate the Essential facilities doctrine. Finally introduce the legal remedy to the refused permission of IPR.