On Patent Abuse And Its Legal Regulation

The patent right can bring actual or potential economic benefits and competitive advantages to the right owners. In order to maximize the benefits, the abuse of patent rights is unavoidable, which could impair interests of others and the public as well. Therefore, it might violate the Civil Law tenets and Antitrust Law. So on the one hand, we should enhance the protection of patent rights, but on the other hand, we should restrict them properly away from abusing. We should take the problem of patent rights abuse seriously, no matter from the angle of perfecting the patent system, or from the angle of promoting economic development. There are many mature ways about it abroad, which have already turned to be good.This paper contains the following parts: firstly, a general analysis about the abusing of patent rights. In this part, the author focuses on the connotation, constitutional elements and categories of patent fights abuse. Secondly, an analysis on the forms of patent rights abuse conduct. Patent rights abuse conduct can be sorted to five kinds: malicious possession of patent rights, abusing the dominant market advantage, abusing the patent license, abusing the patent rights while applying them, competition restriction. Thirdly, the paper analyzes the latest legislation in EU, USA, Japan, Taiwan province and international agreement from the perspective of comparative law. Finally, a preliminary study on the construction of a legal system to regulate patent abuse in our country. We can apply Civil Law, Patent Law and Antimonopoly 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. The author wants to find a way to control patent abusing from the Patent Law and Antimonopoly Law. The government must formulate more detailed and more concrete guidelines or regulations. Ultimately we can perfect our country patent system, and create a good environment for the market economic development.In a word, we should institute practical law system to control the abuse of patent rights, based on Chinese Status quo and advanced experience abroad. This law system should not only protect patent rights but also prevent the owner from abusing the power to destroy the free and fair competition, and in this way we can promote both the technological innovation and the economic competition coordinately in China.