Under The Perspective Of International Law, Abuse Of Intellectual Property Regulation

Intellectual property right allows the right owner to exercise certain right exclusively within a limited period. However, the right owner may abuse such legally conferred monopolistic right to exclude or constraint competition and thus impede the fair competition system. The anti-monopoly law shall play the role to cure such damages. In other words, anti-monopoly law shall be applied where the owners of intellectual property right exercise the rights beyond or against the aim of the intellectual property law. International communities and various countries and regions have paid attention to such problems for a long period and also accumulated extensive experiences in both anti-monopoly legislations and trial practices. The PRC Anti-monopoly Law, effective as from 1 August 2008, adopted the anti-monopoly rules towards the abuse of intellectual property right in Article 55. But the PRC legislations failed to provide further detailed rules. The dissertation intends to make legislative suggestions regarding the intellectual property related anti-monopoly issues, based on the full study of the basic theory of intellectual property related anti-monopoly issues and the examination of the legislative precedents and trial practice of certain international organizations and countries and regions.The dissertation has four parts. Chapter I introduces the basic theory of both anti-monopoly and intellectual property right, and accordingly discusses the actual conflicts and the potential coordination between the anti-monopoly policies and intellectual property rights. Chapter II presents the legislative attempts towards the anti-monopoly policies arising from the abuse of intellectual property rights promulgated by certain related international organizations, of which rules incorporated in TRIPS shall be paid special attentions during the incoming PRC legislations. Chapter III examines the legislative precedents and trial practices in the area of abuse of intellectual property right of the United States, European Union, Japan and Taiwan. The author summarizes several points based on the comparative study. Chapter IV reviewed the current legislations regulating the abuse of intellectual property right, and thus makes legislative suggestions as to the future anti-monopoly guidelines of the abuse of intellectual property rights. The author suggests the future guidelines shall perfect the present anti-monopoly law by implementing rules of the subjects, the specific anti-monopoly behaviors, the executing bodies and regulatory liabilities of the abuse of intellectual property rights.