Study On Identification Of Patent Abuse

Patent abuse theory first appeared in the United States, Judge established this principle in the trial case's process, its specific meaning can be summarized as:It is such a behavior:a patentee and exclusive licensor improper exercise of rights, such as not enforcing patent rights, unfair trading and improper restrictions on transactions, causing damage to public interests. In recent years, this phenomenon is more and more serious that the patentee abuse the monopoly of patent right to restrict market competition and damage rivals interests, so the identification of patent abuse can better help us to understand what constitutes abuse, what kind of abuse should be subject to regulation, to achieve better protection of the legitimate rights and interests of parties to the transaction and social public interests purpose.This article is divided into five parts:the first part focuses on the basic theory of patent abuse. Any kind of behavior appearance has certain historical evolution and its internal reasons, therefore, the article went on to discuss the history of patent abuse and the reasons for abuse:the patent right has a unique rights defining system; patent has its own unique properties. Then through the analysis of the inner meanings of identification of patent abuse to explain the structural characteristics of patent abuse: Through subject,subjective aspect,objective aspect and damage degree four aspects to detail discuss what act would constitute a patent abuse. The second part is to investigate the types of the identification of patent abuse. Through before and after patent grant in the identification of abuse to make us more specific and detailed understanding of the type of patent abuse and the necessary conditions. The third part is mainly analysis the basic principles of patent abuse from discussing the basic principles of identification, mainly through the introduction of the useful experience for the identification of patent abuse from the overseas countries and regions to make up the deficiency in our country. The fourth part gives some suggestions on which institution should be determined to identify patent abuse. Including enforcement agencies by law and participation of experts. The fifth part is mainly discuss the identification criteria and the procedure of identification, this part is written that the standards for the identification of patent abuse are market identification and structural identification. In this part of the writing, through a number of classic cases we can be more easily recognize the standards of identification of patent abuse. The discussion about the certification procedure is to introduce the monopoly investigation.