Attempt To Discuss With The Patent Misuse Regulated By Antitrust

Over the last ten years, science and technology make phenomenal progress. Transnational corporations possess 90% of high and new technology in the world. Currently, more than 400 corporations in Global 500 have come into China with their high and new technology along with Patent. And they set up Patent office in succession. If we keep unreasonablly "raise up" the protection of Patent and be short of the provisions to restrain the abuse of intellectual property rights , it is an opportunity for some transnational corporations to force Chinese enterprises out the development of technology and the trituration of products.We now have a uniform Antitrust law. It is possible to restrain the abuse of patent rights with Antitrust. However, there is no concrete provision which is specially to point against the abuse of patent rights in the 57 provisions. Therefore, to put the treatment of patent abuse into practice at the present time, the major governinglaws are still the Law of the People's Republic of China Against Competition by Inappropriate Means, the Regulations on the Import and Export Control of Technologies, the Foreign Trade Law and so on. But the above-mentioned legislations are relatively simple and are multiple head, go against operation in practice. China should establish different sources of law to regulate the abuse of patent right, including patent law, anti-monopoly law, and administrative rules.This article was hoped to perfect anti-monopoly law system when regulating the abuse of patent right and then boost Chinese economic,by studing on interrelated system and institution.Specifically, this paper is divided into six parts:The preamble presents the background of the study, and summaries the theoretical and practical significance.Chapter I has mainly defined the abuse of patent right. This part sets out from two aspects: Firstly, it searches after the origin and the defination of "Abuse of right" ; Secondly,it summarise the feature that patent right is easy abused and the performance of abusing the patent right. It also differentiates patent abuse and the abuse of patent system.Chapter II makes a feasibility analysis on Antitrust regulating patent abuse. Based on an analysis about the on-off relationship between patent law and Antitrust,it thinks that Antitrust regulating patent abuse is feasible.Chapter III has introduced the legislation and practice of Antitrust regulating patent abuse in varies contries in the would. It introduces safe harbors ,rule of per se and black clause and rule of reason in USA 1995 Antitrust Guidline for the Licensing of intellectual property; black clause and white clause in EC No 240/90 and No 772/2004.It introduces the interrelated legislation in Japan, Chinese Taiwan and some international organizations in addition.Chapter IV has discussed Chinese Antimonopoy Law and other interrelated legislations. China' s legislation in patent abuse should consider topics below: to coordinate holder individual interests and public interests; the legislation and enforcement limiting patent abuse should become an important part of the anti-monopoly law in China; China's legislative restricting patent abuse should consistent with China's national conditions. Specific to the special legislation, we should fomulate anti-monopoly laws aiming at the abuses of patent;and fomulate the rules of anti-monopoly enforcement regulations aiming at the patent right abuseAnd the conclusion summaries the main viewpoints of this paper.