Patent Misuse

Whereas Microsoft monopoly case as well as the patent offensive taken by 6c and 3 c in China , many law scholars in China think about the abuse of the intellectual property right which includes patent right abuse .The practical meaning of the text is to discuss the measure to rule the patent right abuse by researching the relation between the patent right and the market monopoly status, and distinguishing the patent right abuse from the abusing of market monopoly status, and discussing the constitute as well as determinant principle.The text is divided to four parts.The first part mostly dicuss the meaning of the patent right abuse .In this part, the right abuse theory firstly is summarized, hereon the base, the definition of the patent right abuse is deduced with deduction method, and the development of the theory of the patent right abuse is introduced . The patent right abuse is distinguished from the abusing of market monopoly status. To understand the meaning of the right abuse more deeply, the relation between the right abuse and the right restriction is discussed.The secondly,the text deems that patent abuse's constitution element should be four aspects: patent right, obligor's violation law's restriction,the damaging aftereffect and the subjective donkey act. In order to provide guidance for judge patent abuse, the text induces five fundamental.In the third part, the text analyses more than ten kind actions of patent abuse in enumerative way, and demonstrates patent right time limit and patent right's use in technical standard license.The fourth part analysises the rule of the patent right abuse. The text deems that Hesperian modus operandi should be reference properly, but not copy. Because the modus operandi is that right abuse in intellectual property field is restricted under monopoly law.The text thinks that it is just restriction of the patent abuse when...