Law Regulation Research On Misuse Of Intellectual Property Rights

The abuse of intellectual property rights is concerned on the misuse of intellectual property rights, which means that the owners of intellectual property rights exercise their rights beyond the mark permitted by law or the proper limits, resulting in improper use of the rights and harming interests of others or public interests. In a word, it is the abuse of rights. The definition established by "the theory of violating the purpose of legislation " can not only accurately explain the nature of the abuse, but also modify the definition according to the new situation, to cure loopholes of the law. According to the contents and characteristics of anti-monopoly law, the abuse of intellectual property rights can be classified as acts of abusing market dominant position, intellectual property licensing joint restrict competition, corporate combination of controlling behaviors, individual company exclusive behaviors and behaviors of business alliance to set standards.Regulation of the abuse of the legal system of intellectual property includes intellectual property law of internal restrictions on the abuse of intellectual property and other laws of external regulation on the abuse of intellectual property. In the entire legal system, anti-monopoly law can act directly on the abuse of intellectual property rights, as many countries (including China) prefer to anti-monopoly law for regulating the abuse of intellectual property. The regulation of anti-monopoly law on the abuse of intellectual property is the logical starting point of the definition of the abuse of intellectual property. The criterion of intellectual property rights abuses is often based on whether the intent of the legislators is violated. In practice, the first is whether the exercise of intellectual property rights is over their own boundaries. The second, the behavior of exercise of intellectual property rights to restrict competition should be also prohibited. According to China's anti-monopoly law, to determine whether the behavior constitutes the abuse of intellectual property rights , it can be determined from four aspects: whether the operators fulfill the conditions; whether the owners of intellectual property rights in the relevant market are dominant; whether the owners of intellectual property rights abuse their dominant market position; whether the behaviors are infringement of market, fair competition, consumer interests or public interests. The last point is the most important one, which starts from the legislative intent to define the composition of elements of the abuse of intellectual property rights, in order to avoid defining the concept of abuse of intellectual property by the appearance of the composition of elements.Many countries conduct the regulation of the relevant legislation. U.S. efforts at coordinating anti-monopoly law and the relationship between intellectual property law, and carries out according to Sherman Act Legislation, its jurisprudence and law enforcement practice reflects this process. What embodied in the trend of development in this area is "Antitrust Guidelines for Licensing of Intellectual Property" (hereinafter referred to as "Guide"). The "Guide" makes a systematic presentation of its attitude, approach and application of law principles, and detailed examples. Its law enforcement and case experience in this field is summarized, and common understanding on the differences and different approaches to guide the public to judge whether the conduct whose licensing contract would violate antitrust laws is accomplished. The EU has exerted itself in the struggle for the harmonization of competition laws and intellectual property law to balance the conflict. The academic view said that the EU competition law has three objectives: the first is the protection of effective competition; the second is to establish the principle of fair competition, especially to protect small and middle enterprises; the third is to use competition rules to promote the united European market composed of individual members. Over the years, the EU competition law has established three principles of use of intellectual property: the principle of distinction between the ownership of intellectual property "existent rights" and "use rights"; the principle of exhaustion of rights; homology principle. Japan's anti-monopoly law coordinates with the Intellectual Property Law by special provisions at first. " Antitrust Guidelines for the Licensing of Intellectual Property " issued on July 30, 1999, according to the new situation in Japan and the international community since the 20th century, has given advice on how to apply anti-monopoly law in the field of intellectual property. This helps to improve the transparency of the policy,and is beneficial to grasp the limits of policies , laws and conduct operations to prevent illegal acts.From the condition of the U.S., EU and Japan, the investigation and analysis shows that these legal documents explained in detail the relationship between antitrust and intellectual property rights, particularly the practice of the legislative experience has been proved to be reasonable. Studies on the fine legislative experience, in order to improve of legal system of turning against the abuse of the legal regulation of intellectual property, have very important meaning. Although the above countries protect Intellectual property to ensure that the exercise of intellectual property dose not impair free competition order, they have served primarily with property rights through the field of anti-monopoly law to regulate the abuse of intellectual property as well as legislative models have their own characteristics, legislation of countries is the same, which is indeed the principal balance of interests of coordinating innovation and competition, eventually to protect consumer interests and promoting economic development. Although China's anti-monopoly law system has been established, anti-monopoly law does not explicitly stipulate that the abuse of intellectual property has not such clear regulations to restrict the abuse of the intellectual property. Gaps and deficiencies would naturally emerge, so the persons who misuse intellectual property rights in monopoly abuse are subject to the fundamental principles of anti-monopoly law only, but are hardly regulated for the behavior of the abuse of intellectual property. Therefore, the legislation for regulating the abuse of intellectual property rights in China has still many loopholes that would be padded. We should base on our national conditions, follow the relevant international treaties, and learn successful foreign experience in legislation, to build and improve innovative ability. Specific principles in establishing the first basic regulation should be established the legal system of regulating the abuse of intellectual property; the second, we must refer to foreign legislation and practical experience, and develop the legal system in line with our actual situation; the third, to integrate with WTO. Specific ways of regulation of the abuse of intellectual property rights recommend the following measures: The first, to regulate the abuse of intellectual property rights, the exercise of intellectual property rights is bounded by the fundamental principles of civil law. The second, establishing and improving legal system of regulating the abuse of intellectual property should be regulated by anti-monopoly law as the core, then the other laws and regulations are the supplementary provisions. The third, establish a certain independence of the law enforcement system. The fourth, establish a reasonable system of public interest litigation to defense misuse of intellectual property.Thus, in the entire legal system which is composed of the basic principles of civil law, antitrust and other laws, conducting a comprehensive system of regulating the abuse of intellectual property in the field, are to protect intellectual property rights which are the fundamental exclusive rights, and whose purpose is encouraging innovation. This is based on the coordination of economic and social development, which is not only the requirement of social development, but also the trend of the times. Internationally, countries should not only focus on intellectual property protection, but also pay attention to behaviors of regulating the abuse of intellectual property. In recent years, with increasingly cross-border economic activities, the abuse of intellectual property rights or restrict competition has increased. This will disturb the normal market order, and block the advancement of technology. Therefore, to regulate behavior of the abuse of intellectual property rights has important practical significance, which is not only to safeguard the economic interests of developing countries, but also is benefit for promoting fair competition between developed countries ,finally contributing to the competitive mechanism in the international community.