Patent Abuse

Technical innovation and social development are not only based on science theory and technology, but also need the protection and stimulation of the intellectual property system. Now the problem of intellectual property abusing, especially the abuse of patent right, is getting worse. This article is focus on the abusing of patent rights through a view of history and a method of jurisprudence. The purpose for study patent abusing is to find out ways and means to confine the paten rights in reasonable effect to manage the patent and IP crises of china.What incarnate the essence of patent rights are that sharing the information about the invention in paper and grant the owner of invention a legal monopoly right for a specified period in return. The ultimate purpose of patent is for the benefit of the whole society, so it is different from the monopolization who pursing the self-benefit. The theory of patent rights abusing was originated from America, and can be traceable from the later 19th. The attitude to the theory at first was disaffirm, then affirm, and now restrict. The definition of patent abusing is that the patentee or the granted performs his rights exceed the border of the law permitted or the allowable scope, harming the others and the public benefit. According to the theory of right abusing, the conditions of patent abusing can be come down to as follows: patent must be held; performer is the patentee or the granted; exceed the legal and allowable scope; damages occurred; subjective fault. The behavior of patent abusing can be sorted to five kinds: possessing the patent with evil, abusing the ascendancy over market; abusing the patent licensing; abusing during applying the patent; restricting competition. We can use civil law, patent law and anti-monopoly law to restrict patent abusing. It is popular in many countries to use anti-trust law to fulfill the task of protecting the public interest and balancing the interests between the patentee and the public.React to patent abusing, we can do as follows: firstly, make fully use of present law and statutes to control patent abusing; Secondly, study foreign experiments and advanced method in this field and then amend our law and statutes. We should amending patent law and thedetail rules of patent law, adding the clause of restrict patent abusing. We need to constitute the anti-monopoly law and establish a self-governed organization to execute the law and statute in intellectual property field. We also can legislate the intellectual property code to regulate the use of patent. The government should give the IP strategy, and setup a efficient quick-response IP system to protect the interest of our enterprises.