Research On Regulating Abuse Of Patent In Patent Licensing By Law

Under the background of the intellectual economy,the competition of science and technology has become increasingly fierce on the global scale;the patent system has attracted more and more attention from all countries;and the public voice for protecting patent rights has been louder and louder.However,the abuse of patent unavoidably affects,and even harms people's freedom of access to knowledge and information.The Chinese Anti-monopoly Law came into force on August 1,2008.The third amending of Patent Law shall enter into force on October 1,2009.The promulgation and amendments of these laws will exert great influence on the regulations about the abuse of patent in patent licensing. According to the Anti-Monopoly Law and the new version of the Patent Law,this paper will analysis how to improve the regulations on the abuse of patent,and to protect the patentee's legal rights.This paper illustrates this topic in the following three parts:In the first part,the paper introduces "DVD charges" and the case that our Battery industry enterprises won the lawsuit against Energizer Company's abuse of patent in patent licensing.These examples urge us to learn the dual characters of the patent system, reexamine the current patent system and its protection,and also make us realize the necessity to regulate the abuse of patent in patent licensing.In the second part,the paper analyzes the abuse of patent in theory.Because of the particularity of inventions and creations,patent is very easy be misused.Then,the paper discusses the balance of interest in patent licensing.There are business risks in patent licensing,so it's acceptable for the licensor adding restrictive clauses in license contract.Next, the paper gives the definition of the misuse of patent,and presents the laws and the relevant judicial experiences of the United States,EU,Japan and Taiwan in China about regulating the abuse of patent in patent licensing.Now,the researches on the abuse of patent in patent licensing are often found in the anti-monopoly field.However,the abuse of patent in patent licensing does not necessarily constitute monopoly,and the anti-monopoly laws cannot distinguish all patent misuse behaviors.As a result,the combination of both patent law and anti-monopoly laws should be adopted.In the third part,one of the core parts of this paper,the paper analyzes the current laws, and then point out their shortcomings on regulating abuse of patent in patent licensing. Regarding to the anti-monopoly law,the paper analyzes it from the points of substantive law, law enforcement agencies,control mechanism,and international cooperation.On the improvement of the patent law,the paper gives some suggestions on establishing patent misuse doctrine and compulsory license.