The Legal Regulation For Patent Rights Abuse

For the definition of patent misuse there are different perspectives, for example, that the scope and purpose. Through the analysis of different theories, the definition should be:the abuse of patent rights is the patentee or his licensee, the patent rights to expand the scope permitted by law, damage the legitimate rights and interests of others or the public interest. Its constituent elements include five areas:the main body of patent abuse of the patentee, there must be the existence of patent rights, the existence of subjective fault, caused damage to patent the results of abuse. Following a typical patent abuse behavior:refusal to license, malicious idle patents, patent fees overcharging, tie-ins, malicious litigation, spam warning letter, the use of technology standards patent monopoly. In reality, the patent abuse problems to expand and intensify the situation, as follows:First, China's independent innovation capability has become an overseas company's patent strategy will focus on killing. Second, foreign companies against patent has become a tool of national brands. Group of links leading article example, which shows that abuse of patent rights to regulate the necessity and urgency.Regulation of patent abuse, I believe that there are three theoretical basis for the support, namely:the prohibition of abuse of rights theory, the interests of the equilibrium theory and competition theory. These theories are supported by civil law, patent law, the application of antitrust laws. But through these three modes of legal analysis and comparison of regulation can be found:While the abuse of patent rights can be regulated, but a law alone can not apply to any perfect solution to patent abuse. This is because patent law and antitrust in the scope of regulation were more than civil law, but civil law is essential; anti-monopoly law is far more civil law, patent law more deterrent sanctions, but there is still some lack of behavior the degree of monopoly and thus constitutes antitrust laws may apply. Faced with this contradiction, the use of multi-track system is the best option.Through the United States, European Union, Japan and Taiwan of China regulation compared the practice of patent abuse can be found, the use of patent law and antitrust regulatory approach is both feasible and should also be emphasized in the regulation of anti-monopoly law in an important position.Therefore, I believe that effective regulation of patent abuse issue should be considered from the following aspects:to take the "anti-monopoly law" as the core, the "Patent Law" applies to both the two-tier regulatory approach; revise and improve the "anti-monopoly law," the relevant provisions of the early introduction of a "patent abuse of antitrust enforcement guidelines"; continue to improve the "Patent Law", to make a clear abuse of the patent provisions to strengthen the internal regulation; to strengthen the judicial and administrative patent abuse law enforcement.