The Legal Regulation For Patent Rights Abuse By Multinationals

Against the background of economic globalization and knowledge economy, patent rights are used increasingly as an important tool by multinational corporations to gain the market and obtain huge profits. The abuse of patent rights by multinational corporations has attracted the full attention of the world; countries have one after another formulated relevant laws for its regulation. Since China joined the World Trade Organization, its market has become more open than before. Under such circumstances the implementation of patent rights strategy by multinational corporations has brought serious challenges to the survival and development of the enterprises in china. Therefore, it has become an urgent task for China to make laws to stop the abuse of patent rights.In order to regulate patent abuse of multinational corporations, the identification of patent abuse must be firstly considered, that is, to decide what kind of action belongs to the abuse of patent rights; then we must solve the problem of the connection between the patent abuses and the violation of anti-monopoly law, i.e. to regulate the patent abuse according to anti-monopoly law alone or to both "Patent Law" and "anti-monopoly law", which is called the "dual track" model and functions coordinately and mutually; thirdly, we must know the way of learning from the legislation experience of advanced foreign countries, in order to further improve the relevant provisions of patent abuse of China's "Patent Law" and "anti-monopoly law". Finally, we must formulate appropriately the following two guides:" the Guide of the Identification of Patent Abuse "and "the Execution Guide of Patent Abuse of Anti-monopoly Law", to strengthen the work of the identification of patent abuse and the execution of anti-monopoly law.To elaborate the problem of patent abuse by multinational corporations, this paper is divided into the following four parts:In the first part, the identification of patent abuse by multinational corporations is elaborated in four levels: the first level concerns the definition of patent abuse which is divided into "general patent abuse" and "monopoly patent rights abuse"; the second level describes the principles of identification of patent abuse: the principle of reasonableness, the principle of exhaustion of rights and the principle of compulsory licenses; the third level analyzes the ways of the identification of patent abuse by multinational corporations: the reasonable principle analysis, the effectiveness analysis and the market power analysis; the fourth level is about the standards of the identification of patent abuse by multinational corporations.The second part summarizes the classification of patent abuse by multinational corporations. First, the classification of the general patent abuse is introduced which includes the abuse of patent application rights, the abuse of the patent protection period and the abuse of the patent legal relief; Second, it elaborates the classification of the abuse of monopoly patent rights, which is divided into the abuse of dominant position in specific markets, joint restrictions on competition and the abuse of a standard patent right; finally, the author draws the following two conclusions: we must use the dual-track model and the provisions must be complete enough to deal with new kinds of patent abuse.In the third part a comparative research on the legislation of the major countries and regions is carried out. The emphasis is on the laws about the regulation of patent abuse of USA, EU, Japan and Taiwan. The author also summarizes the international laws about the regulation of patent abuse, especially the irreplaceable provisions about the regulation of patent abuse in Trips, and four recommendations that can help improve the legislation on the regulation of patent abuse in our country.The fourth part is the most important part of this paper. After the analysis of the present situation of legal regulation for patent rights abuse of multinational corporations in our country, the author pointed out the inadequacy of existing legal norms; On the basis of learning from the U.S. "dual track" model, the author has made some suggestions on improving the internal regulatory system of "Patent Law" and the external regulatory system of "anti - Monopoly Law "; Based on the advanced experience of foreign countries, the author researches on the formulation of " the Guide of the Identification of Patent Abuse " and "the Execution Guide of Patent Abuse of Anti-monopoly Law" in line with China's national conditions.