On Restriction Of The Antimonopoly Law To Intellectual Property

Intellectual Property is a system which is to stimulate innovation and promote economic and social development,which is a legitimate form of monopoly and except otherwise prodided of antimonopoly law. But with the rapid development of knowledge-based economy, technology has become the core competitiveness of enterprises, more and more people competing for the market share with intellectual property and acquire high profits.They restrict or exclude orther competitors with intellectual property and refuse licensing of IP or exert unreasonable terms and conditions or additional means to restrict or hinder competition.That Has formed destruction to the free fair competition order and violation to the social public interest ,such as Microsoft bundling selling browser case. Especially now our country is in the transition period of rapid economic development, Urgently needing to introduce foreign advanced technologies in order to improve our economic and technical level. But our country lags behind developed countries in technical research and innovation. Foreign enterprises, especially those of transnational corporations restrict or exclude domestic competitors on the use of their own intellectual property and their technical advantage, such as Cisco v. Huawei. Therefore, we need public-benefits-based of anti-monopoly law system to regulate this and to limit the abuse of intellectual property which may limit or impaire fair competition, to maintain free and fair competition and safeguard the interests and efficiency of the whole society. At the same time,during the "transitional" period of the development of economey and the upgrading of technology ,we should use the anti-monopoly rules to safeguard the legitimate economic interests of our enterprises.In chapter one, the author mainly Elaborates the relationship between intellectual property and anti-monopoly law and divide it into two aspects of conflict and consistency. First of all, the author elaborates the conflict and balance between the intellectual property's self-interest and the public-interest of anti-monopoly law; And the conflict and coordination between the "monopoly" of intellectual property and the "anti-monopoly" of the anti-monopoly law; At the end of this part, the outhor mainly elaborates the common legislation goals between the intellectual property and the anti-monopoly law in the protection of consumer's benefits, the promotion of competetion and the promotion of the social welfare.In the second part ,the author mainly analyze the necessity of the theory of restrictions which the anti-monopoly law exert on intellectual property from the jurisprudence perspective .The author mainly introduces the mature legislative practice and rich experience of law enforcement of the abuse of intellectual property in the developed countries and regions. As well as the evaluation of the IP-related anti-monopoly legislation and jurisdiction in the United States, European-Union and Japan in this third part.In the fourth part, the outhor analyze and introduce several kind of typical abuse of intellectual property in reference with the mature practice in the developed countries and regions; Then, the outhor does the general combining analysis together the intellectual property with several kinds of common commercial behavior involving monopoly.The outhor wants to give a constructive suggestion to the future legislation and the law enforcement of anti-monopoly law concerning intellectual property.