Abuse Of Intellectual Property And Its Anti-trust Regulation

The intellectual property is a kind of exclusive right, and also a kind of private right. Due to the intangibility of its object, and because it's easy to copy and make use of it, intellectual property law assures the intellectual product's creator of his reward by endowing him with the legal monopoly right, objectively pushing the development of science and technology, as well as the improvement of the society.Although intellectual property is legal monopoly right endowed by the law, and has the function of promoting competition, this monopoly right itself also restricts the demand of intellectual product from the society and sacrifices partial benefit of the public to achieve the subject's benefit. In order to protect the whole common right, to disseminate and apply science and technology, intellectual property laws of many countries has regulations to restrict the enforcement of intellectual property in terms of period, effectiveness and scope, with main methods of "Fair Use"," Statutory License"," Compulsory License","Exhaustion of Exclusive" and so on.However, any right has the possibility to be abused, and unavoidably, the subject of the intellectual property would buck for the biggest benefit by making use of the exclusive right to the intellectual product. The subject may go beyond the law or the legal scope while enforcing his right, so as to improper use to the right and may then lead to the unbalance of the subject's right concerning the intellectual property. Inthe view of domestic and international relevant cases and regulations, the criterion of judging whether the intellectual property right is legally enforced or abused is inspecting that if this conduct goes beyond the law, and if this conduct leads to the unbalance of the subject's right concerning the intellectual property. Intellectual property abuses mostly occur in abuses of dominant market position and collusive restriction of competition.When intellectual property law fails to restrict the abuse of the intellectual property and get the expected effect because of limited scope or method, the antimonopoly law based on the government authority is needed to interrupt in, and then regulate the abuse conduct by the active intervention of the government. Antimonopoly law aims to protect the fair competition environment. The countries that has made antimonopoly laws and regulations at first classify the intellectual property into application exceptions to strengthen the protection of intellectual products, meantime, stressing anti-abuse of intellectual property as important part, stipulate the principles and methods to regulate abuses. The rules of the antimonopoly law to regulate the conduct that abuses the intellectual property mainly are the rule of per se illegal and the rule of reason. The detailed regulative methods, stipulating the scope by the way of particularizing, can be classified into three kinds: the conducts that can be, cannot be, or may be exempted by the antimonopoly law.Although there are potential conflicts between intellectual propertylaw and antimonopoly law in system-designing and right-enforcing, they are inwardly accordant in strengthening market competition, protecting consumers' rights, and accelerating the society development, same in the final legislative intention while just different in adjusting scope and methods. When conflicts each other, the principle that private laws obey public laws, and private rights obey publid rights should applied to solve, and antimonopoly law should be prior to other laws.Antimonopoly law is an indispensable and important part in the law system of the socialist market economy. There is no antimonopoly statute law in China, meantime the present laws and regulations relating to antimonopoly are a little more scattered and less practicable. When happens with strategic beleaguering on intellectual property by multination corporations, it's hard to counterattack against their intellectual property abuses. At present, some multination corporations in control of core intellectual property has adopted lots of means that disobey the fair exchange to reach the goal of supplanting opponents and consolidating their monopolistic position in China market. For the sake of challenges in the field of intellectual property faced by our country, we must draw lessons from foreign advanced legislation and TRlPS(Trade-related aspects of intellectual property rights) agreement to regulate intellectual property abuses and make antimonopoly law covering the regulation of intellectual property abuse as soon as possible.