Research On Anti-monopoly Law Restriction Over Intellectual Property Owner Who Refuses To Deal

In the era of knowledge economy, Intellectual Property Right is more important than ever before. It makes IP owner engage in the conduct of refusal-to-deal and limit or exclude competition more and more by legitimate monopoly power of IP. As a consequence, the result gets worse and worse. However, there is still some blur and hindrance of application on the principles and rules of anti-monopoly law in various countries. And Chinese newly anti-monopoly law only provides a legal basis on principals for the regulation on abuse of IPR to limit or exclude competition, which is lack of specific rules and principals. More over, whether particular conduct of refusal-to-deal violates the anti-monopoly law is full of significant uncertainty. In view of the above, I have carried on empirical study on the legislative practice and the judicial status on anti-monopoly law restriction over IP owner who refuses to deal in several countries and table my proposal on the specific rules in order to give advice to building and improving the restriction over IP owner by anti-monopoly law.As the refusal to deal of IP owner is more lawful and rational than the conditional refusals', thus the first part of this article is focused on the theoretical analysis on the regulations over the IP owner's refusals. On the basis of prohibition of abuse of rights theory, the equilibrium theory and relationship between IP protection and antitrust theory, focused on that the anti-competition of the behavior has been strengthened in the new economic era, I proposed two principals, one is that the behavior which IP owner refuses to deal should be reviewed, the other is the principals of rational analysis on the regulations on that behavior. In the second part of this article, I have carried on the empirical study on the legislative practice and the judicial status on anti-monopoly law restriction over IP owner who refuses to deal in several countries, clarified that the USA and EU have applied on different regulation attitudes on the refusals to deal because of the level of IP which is the projection of national benefit. In the third part of the article I have abstracted the relevant rules and methods on restriction over IP owner's refusals to deal by anti-monopoly law creatively, such as secondary market rules, new product rules, essential facility doctrine, technical standard rules and convenient facility rules. In the last part of the article I make some suggestions on construction and perfection of the regulations of IP owners'refusals by anti-monopoly law, concluded that currently based on the condition of our country that IPR is depended on imports, the core competitiveness is not strong, we should introduce actively essential facility doctrine and use a variety of methods and rules to judge the anti-competition and illegality of the refusals to deal by IP owner from various angles, crack down the behavior abusing of IP limiting and excluding competition.