Patent Abuse Of The Legal Regulation

Microsoft monopoly case attracted worldwide attention, DVD cases, as well as the 6C and 3C Union against China patent offensive has not only aroused people's attention to its defects, but also led to China's jurisprudence thinking of the abuse of patent right, but most scholars start with Anti-monopoly law or the Anti-Unfair Competition Law, this article focuses on the type of the abuse of patent, and tells the difference between non-monopoly abuse of patent and monopoly abuse of patent, furthermore, in order to avoid abuse of patent put fully in the scope of the anti-monopoly law, this article also discusses the identification of the standards of abuse of patent and attempts to seek purposely measures to regulate abuse of patent.This article is divided into four parts; the first part mainly discusses the basic theory of the abuse of patent, through discussing the development of the theory of the abuse of patent leads to its meaning, and then focuses on the identification of the standard of the abuse of patent. The second part focuses on the Performance analysis of the abuse of patent, through the classification of the behavior of the existing abuse of patent, so one can study how to regulate it in different levels better. The third part focuses on the domestic and foreign current situation of regulations of the abuse of patent. Through analyzing the shortage of regulation of our existing legal system and the advanced experience of regulation of the abuse of patent right abroad, one can improve China's law to regulate abuse of patent. For our shortcomings, the fourth part puts forward the tentative plan of legislation on our regulatory system of the abuse of patent at three levels, abuse of patent rights belong to civil rights, first of all, which will be subject to the regulations of civil law and patent law, at the same time, because the behavior of the abuse of patent, especially, monopoly abuse of patent rights do harm to the competition, they should be within the framework of Anti-monopoly law。In short, we must be based on China's national conditions, and actively learn from the foreign advanced experience of legislation, draw up anti-monopoly law which must be fit for China's national conditions and regulate the abuse of patent. Meanwhile we should improve our country's existing legal system, it is necessary to ensure the legitimate rights and interests of the patentees, but also to prevent negative effects of the abuse of patent rights, and we should make full use of the nature of their functions.