Study On The Regulations Against Refuse To License Intellectual Property Rights Through Anti-monopoly Law

Intellectual property rights(herein after "IPR")per se is a legal right of monopoly and exclusiveness, which is designed to promote the progress of technology, the growth of our economy and the development of our society through stimulating creations and inventions. Therefore,the legal right of monopoly and exclusiveness conferred by law tends to let the owner of IPR gain a status of monopoly or domination in some market,which is likely to be abused by certain market players who own IPR to eliminate their competitors under the drive of economic interest.These abusing practices damage the order of market competition,so we need to regulate these practices by anti-monopoly law. The illegal use of IPR damaging market competition should not be exempted from anti-monopoly law. In other words, Within the scope of anti-monopoly law, owners of IPR cannot be given preferential treatments .Based on the actual situation of China, with the quick development of economic globalization and growing expansion of opening to the outside world, the enormous market potential of China has been attracting more and more multinational corporations to China, and most of them are high-tech corporations. These multinational corporations have utilized their status of domination or monopoly in the market to eliminate local corporations in China, establishing all kinds of "technical barriers "in the name of exploiting IPRs, and have tried to reap high monopoly profits. In recent years,cases involving multinational corporations' abuse of their IPRs to eliminate Chinese local corporations have taken place frequently,such as the sensational case of "Cisco v. Huawei", have drawn wide attentions from people in all walks of life. As we all known, it is imperative that the abuse of IPRs should be regulated by anti-monopoly law in China.It has shown that, among all kinds of abuses conducted by multinational corporations in China, the most common one is refuse to license IPR, which has become the major means adopted by multinational corporations to eliminate competitors. Hence, this dissertation takes the conduct of refusing to license IPR as the study subject, adopts the study method of demonstration analysis and comparison, discusses how to effectively regulate this conduct with anti-monopoly law, and further puts forward concrete countermeasures to perfect related anti-monopoly legislations in China.Structurally,this dissertation is divided into four parts,which mainly contains: Part I "The status quo of abusing behaviour of refuse to license and the necessity of regulating against such behaviour through anti-monopoly law" mainly introduces the current increasingly serious situation of abusing IPRs in China, the most common kind of which is refuse to license IPRs. Since refuse to license causes jeopardizing impacts on market competition order, so it is in bad need to be regulated by anti-monopoly law, which ensues the necessity of writting this dissertation.Then, this part continues to introduce two aspects involved in the regulation against refuse to license by anti-monopoly law:one aspect is the judgement of whether a certain conduct of refusing to license violates anti-monopoly law or not, the other aspect is how to remedy those illegal refuses within the scope of anti-monopoly law.Part II "The determination of whether certain conducts of refusing to license IPRs violates anti-monopoly law or not" firstly classifies all conducts of refusing to license into four types: collaborative refusing with horizontal agreement, collaborative refusing with vertical agreement, unilateral refusing with no condition and unilateral refusing with some conditions. Then it elaborates with great emphasis on how to determine whether a certain unilateral conduct of refusing to license with no condition violates anti-monopoly law or not, given its complication and difficulty. The determination involves the definition of the concepts of "relevant market", "market domination"and "abuse",the application of "Essential Facilities Doctrine",etc. So far, this dissertation has completed the first task of regulating refuse to license IPRs, namely, the determination of violations of certain refusing conducts.Part III "Remedy to refuse to license IPRS on anti-monopoly law: Compulsory licensing" illustrates the application of compulsory licensing to the remedy of refusing to license. At first, this part illustrates the application of compulsory licensing in the regulations of anti-monopoly law, and, based on the introduction of related stipulations of foreign countries or regions such as United States and EC, comes to a conclusion about the application requirements of compulsory licensing. Then it points out the existing value of compulsory licensing in anti-monopoly law by comparing the differences between compulsory licensing in anti-monopoly law and in IPR law. Meanwhile, it also emphasizes the prudence of applying compulsory licensing in anti-monopoly law.Part IV " Thoughts on perfecting the anti-monopoly law regulating refuse to license IPR in China " is the ultimate goal of this dissertation. "Stones from other hills may serve to polish jades." Considering that there are some imperfections in the regulations of Chinese anti-monopoly law of refuse to licensing IPRs, this dissertation, based on the actual situations in China, puts forward some concrete countermeasures perfecting related anti-monopoly legislations by referring to advanced experiences of foreign countries or regions such as EC and United States.