A Study On Intellectual Property Rights Abuse And Its Legal Regulation

It is required in the preamble of the TRIPS Agreement that"Intellectual property rights are private rights". As a kind of exclusive rights, the Intellectual Property Rights are likely to be abused. Nowadays, it is an indisputable fact that the multinationals have been taking advantage of the Intellectual Property Rights monopoly and the unreasonable clauses in the Intellectual Property Rights license, thus squeezing large amounts of profits from developing countries. Therefore, the study on the abuse of Intellectual Property Rights has far-reaching meaning both theoretically and practically. The purpose of the Intellectual Property Rights protection law, characterized by its public yet private nature, basically, is to protect the individual rights of the Intellectual Property Rights owner and thus fostering the spreading of knowledge and the technological advances in the society. Nevertheless, the abuse of Intellectual Property Rights has hampered market competition, technological advancement as well as the liberalization of international trade. The negation and regulation of Intellectual Property Rights abuse is, therefore, to protect the just rights. The regulation of the Intellectual Property Rights abuse should be an essential part among the themes of the Intellectual Property Rights protection. The rules to regulate the Intellectual Property Rights abuse should be complete, including both the regulation of public law dominated by the Anti-monopoly Law and the continual perfection of the Intellectual Property Law. In the past few years, in order to meet the entry requirement of the WTO, China has been stressing the high standards of Intellectual Property Rights protection, while ignoring the abuse of Intellectual Property Rights in related areas. Although the promulgation of the Anti-monopoly Law has, to some extent, granted balance between the Intellectual Property Rights owner's personal interests and the public interests, the law only generally deals with the abuse of Intellectual Property Rights. Thus, it is essential to explore this further in terms of the balance between rights and obligations as well as individual rights and public interests based on the study of international pacts and the legislation of developed countries.There are four chapters in this thesis. For a start, chapter one introduces the background of the Intellectual Property Rights abuse and points out its theoretical roots, realistic roots, its negative impacts as well as the necessity of this research topic; Chapter two defines the abuse of Intellectual Property Rights and expands it from three aspects: the construction and forms of the Intellectual Property Rights abuse, the relationship between Intellectual Property Rights abuse and Intellectual Property Rights monopoly, and the balance between Intellectual Property Rights abuse and Intellectual Property Rights protection; Chapter three explains and puts forward the theoretical and judicial proof for the regulation of the Intellectual Property Rights abuse; Chapter four elaborates the legal system of the regulation of the Intellectual Property Rights abuse and comes up with a systematic conception for the regulation of Intellectual Property Rights abuse in our country.With the application of dialectical analysis, comparative analysis and case analysis, this thesis attempts to explore issues and come up with ideas from the following aspects: 1. Explore the roots of Intellectual Property Rights abuse and its regulation system based on the balance between rights and obligations as well as the theory of interests balancing, with study on international pacts and the legislation of developed countries. The balance between the interests of the Intellectual Property Rights owners and the public also runs through this thesis. 2. Illustrate the forms of Intellectual Property Rights abuse and with case study, summarize them in terms of the Substantive Law and the Procedure Law, thus making the definition of Intellectual Property Rights abuse more complete. 3. Explore the relationship of dialectical unity between the Intellectual Property Rights abuse and the Intellectual Property Rights protection and point out that the regulation of Intellectual Property Rights abuse is to better protect the Intellectual Property Rights; Summarize the bounds between the abuse of Intellectual Property Rights and the legal utilization of Intellectual Property Rights. 4. Justify the regulation system of the Intellectual Property Rights abuse in a comprehensive way and suggest an interplayed system combining the public law regulation, the private law regulation and the procedure rights abuse regulation, thus breaking the previous mode fixated on the Anti-monopoly Law. 5. Shed light on a concept for the regulation of the Intellectual Property Rights abuse from a strategic view; Underline the regulation on macro basis and under the framework of international pacts; Break the previous mode limited by mere application of domestic law.