A Research On Patent Abuse And Related Regulation With The Perspective Of Clause40of TRIPS

TRIPS is an international agreement that can mostly reflect theopposition which exists between the developing and developed countries ininternational trade of intellectual property rights. However, how developingcountries should legislate in accordance with his own interests on the premiseof TRIPS Agreement is a very complex problem. Therefore, this paperintends to sort out the history of the execution of TRIPS and research variouscountries in the practice of domestic legislation of abuse on patent, so as toclarify the connotation and denotation of this concept, and the related impactfor a country, which can serve as a prospective predict for our country’slegislation.Compared with other current civil research on this topic, thenon-obviousness of this paper is as follow: Firstly, this paper not onlyconducts an analysis from civil legislation, but also conducts an analysis oneffect of patent abuse on economics of a country, and makes a research on the relation between developing and developed countries on the backgroundof the execution of TRIPS; secondly, based on the legislation experience ofEurope, US, Japan, Taiwan and Germany, this paper make a forecast for thefuture relevant legislation on patent abuse in China. The paper mainlycomprises the introduction, the text and conclusions, whereinthe text consistsof four chapters:The first chapter mainly introduced the basic definition of the patentabuse, and further expounds the each role of patent abuse from views ofobject, subject, subjectivity and objectivity. The second chapter basicallyintroduces relevant legislation in the United States, the European Union,Japan, Germany and Taiwan in the abuse of patent, and conducts an initialcomparison between these countries. The third chapter states therelationship between developed and developing countries on the time ofTRIPS execution, and further introduce clause40of TRIPS. The Fourthchapter states the legislation of China and the status of China in the world onthe time of TRIPS execution, conducts an initial analysis on the laws andregulations of China, then provides some suggestion that can be applied inthe legislation of our country, and also makes a forecast for the futurerelevant legislation on patent abuse in China.TRIPS provides a system to limit the patent abuse，which consists of the principle of limiting the abuse of patent． We can set up a legal systemwithin the framework of TRIPS so as to optimize our IP legislation． On theregulation of patent abuse restricted by antitrust law, Chinese legislature hasto take Chinese technical ability as an important role, based on which we candecide whether we should learn legislation of developed countries, thenfurther decide the relation between patent abuse and antitrust law, and thenjudge the abuse of patent is the precondition of antitrust law violation, or theresult of the violation of that, so as to make it a success to use antitrust law torestrict patent abuse.