Abuse Of Intellectual Property Antitrust Regulation,

The intellectual property rights called the invisible propertyright, is one kind of exclusive civil rights. It has the legality, invisible, the region, the deadline and so on. The intellectual property rights belong to the private power. In order to encourage innovation and promot competition, the law has entrusted with its right person's certain exclusive right. But it exercises actually must receive the essential limit, otherwise it will constitute the intellectual property rights abusing. The intellectual property rights abuse should have the following important documents: (1) the behavior main body is the person for the right entitlement or monopolizes the implementation to permit theperson; (2) on the subjective behavior person has has the intention to harm the other people's rights and interests or the social public interest; (3) on the objective adopts has not implemented the intellectual property rights or not right limits the intellectual property rights transaction and so on not right to exercise thebehavior; (4) the behavior person's behavior has created either possibly creates harms the other people or the social public interest consequence. Because the intellectual property rights has the civil rights and the private power conflict, the private power to the extreme benefit natural pursue, the various countries intellectual property rights system construct the value orientation difference has all caused the occurrence which the intellectual property rights abuses. However,intellectual property rights' public power coexists with the private power,with the civil rights, the partial civil rights competes gathers as well as pursues the benefit balance ofthe entire social, also causes to limit the intellectual property rights abusing. The legal framework to regulate the intellectual propertory rights abuse mainly have the intellectualproperty rights legal framework, the civil law system, the counter-monopoly law system, but as a result of the legislation objective andthe legal rules and regulations method difference, the most effective rules and regulations system should be for the counter- monopoly lawrules and regulations system. The rest of the world the abuse of intellectual property regulation of the practice aslo prove to be the case. Abuse of intellectual property rights for the counter-monopoly regulation is of immediate importance and urgency. It can be beneficial to the development of science and technology, promote the progress of the whole society, is advantageous to the protection of public interest, realizes the personal interest and the public interest balance, may maximum limit maintain the national interest and the consumer benefit. Also may reduce the developed and the developing countries in general technology trade friction. Moreover, abuses to the intellectual property rights carries on the counter-monopoly law rules and regulations also toexist policy basis, namely intellectual property rights and counter- monopoly law exist dialectical relations. If the intellectual property rights legally exercise, then the counter-monopoly law gives the suitable exemption to it, but if itsconstitution abuses, also has limited the normal market competition,then counter- monopoly law to its rules and regulations. This is because the two effectively competes in the promotion and the economicboom, promotes the consumer luck and seeks the right duty thebalanced aspect is consistent. But the two because the system design,the right's (power's) nature, the right's (power's) exercises aspect also have the conflict. At the same time, the right limittheory, the competition law theory, the consumer rights and interests protection theory also request counter-monopoly abuse relegulation. Anti-monopoly law because it applies to the abuse of intellectual property rights to regulate the system is not only the most effective means of constraint, also ban the abuse of rights principle, and maintain normal order of market competition, protect public interests and the interests of consumers. It can maximize the intellectual property rights and the social and public interests, the interests of consumers balance.The reference various countries related legislation and law enforcement practice, from the perspective of the form of intellectual property abuses divided, intellectual property may be regulated by counter-monopoly law contract refusing permission, bundled, price discrimination (including predatory pricing), the region limit return gives and so on. Their common characteristics for the use of its technical superiority, abuse of dominant market position and restricting competition. Against the other main players in the market and the interests of consumers.Abuse of intellectual property rights of foreign counter-monopoly regulatory system is more mature mainly the United States, Japan and the European Union, and the WTO "TRIPS" is the abuse of intellectual property law for the production of a principle, and to allow members of the appropriate conditions for the use of domestic law can be restricted. US "Intellectual property rights Permitted the Counter-Trust Guide", Japan "Patent And Technical Secret Permitted InAgreement Counter- Monopoly Law Directive" as well as European Union "Technical Transfer Competition Rule" and "Technical TransferCompetition Rule using Guide" respectively abuses the counter-monopoly rules and regulations main basis to the intellectual propertyrights, but its concrete operation also respectively has the difference. But their procedure utilizes the counter- monopoly lawrules and regulations intellectual property rights to us to abuse has the enormous enlightenment function. For instance we may profit fromJapanese and American the procedure formulation special counter-monopoly laws and regulations, the establishment special counter-monopoly organization and at the right moment formulate the concreteoperation manual instruction law enforcement practice and so on.Our country at present although has many legal laws and regulations involve the counter- monopoly question which the intellectual propertyrights abuses, but actually does not have specially to unify stipulated. But after joins WTO, in our country many multinational enterprise abuses its intellectual property rights to our country economy and social impact. We must rest on TRIPs'spirit as soon aspossible the. The formulation may the effective rules and regulations intellectual property rights abuse, maintains the market competition the counter- monopoly statute book. This statute book's guiding ideology should be based on maintaining the market competition,protecting the social public interest and the consumer benefit, the realization intellectual property rights right person and our national interest, the consumer benefit maximum limit balance. At the same time, the counter- monopoly law also should establish take the reasonable principle as a core, including the national interest, the consumer benefit principle and the social public interest standard principle legal analysis principle. In the legislation pattern, should unify our country's national condition, uses the behaviorism primarily, the structuralism for the auxiliary legislation pattern, gives dual attention to our country industry to be opposite the reality which develops to the overseas enterprise is insufficient. At the same time, also should set up the rank higher special counter-monopoly organization, and joins by the multitudinous technology and the legal outstanding person adapts its function request. At the same time, also should establish supervising and managing primarily, profession autonomous forauxiliary market supervising and managing system. In addition, for the solution law stability and the flexible contradiction, may at theright moment formulate the similar government guide by the StateCouncil to coordinate the counter- monopoly statute book to be suitable the rules and regulations intellectual property rights to abuse.