The Application Of The Essential Facility Doctrine In Anti-monopoly Of Intellectual Property Rights Fields

The Essential Facility Doctrine(EFD), originating from the United States case law, is a basic doctrine against the conduct of refusing to deal to essential facility in modern anti-monopoly law practice.The doctrine claims that when a monopolist have controlled a essential facility which is necessary to a competitor access to a market, and the owner of essential facilities with anticompetitive intention refuses other competitors to access, this kind of behavior will be contrary to the purpose of the antitrust law. The application of the EFD plays an important role in regulating abusive refusal to deal by dominant undertakings. Traditionally, the application of the EFD is connected to natural monopoly facilities. However, as intellectual property has become an essential facility when entering an industry, the market dominant enterprises may expand the monopoly of certain facility into the downstream market by taking legal monopoly control of intellectual property rights, thus intellectual property rights can easily be used to implement illegal restrictions on competition. Intellectual Property Rights holders'refusal to deal is apparently a monopoly conduct. When an intellectual property right constitutes an essential facility, it is of vital importance for the maintenance and promotion of market competition to make those rights holders who refuse transactions without justifiable reason subject to compulsory licensing. Therefore, the EFD plays an important role in the intellectual property right field. And it is necessary and feasible to apply this doctrine to regulating rights holders'refusals to deal. Both the United States and the European Union have recognized the application of the EFD in the field of intellectual property and accumulated mature experience. On the basis of the study of China's national legislation and national condition in this area, it is of necessity to introduce the Essential Facility Doctrine into the antitrust practice in the intellectual property right field. Under the framework of The Anti-monopoly Law, the form and content of legislation should be perfected. And introduction of special anti-trust norms of intellectual property rights is proposed. In addition, Intellectual Property Law should be combined with the EFD to establish and perfect the compulsory licensing regime of intellectual property rights in order to eliminate right holder's restrictions on the transfer of intellectual property rights and to exterminate their attempts to exclude others in competition, meanwhile giving adequate compensation to intellectual property rights holders so as to maintain the function of intellectual property rights to encourage innovation.