The Abuse Of Patent Rights Regulated By Antitrust Law

Patent right is a legal monopoly power, right owner in a certain period and certain region can gets the monopoly position by its rights. This monopoly as compensation and incentives for patent holder s creative labor is necessary and legal. Even if the patent owner in a certain form or certain aspects restricts the competition, but such restrictions also motivate people to compete in the field of intellectual property and become the necessary means to encourage invention. Therefore, the proper exercise of patent behavior is not restricted. So when handling the relationship between the patent system and the antitrust regime, generally, the exercise of patent rights is except for the application of the Antitrust Law. But patents have a legitimate monopoly cloak, compared with the general right is more easily to be abused. When the patent is improperly used to limit competition, hamper technological innovation and the efficient allocation of social resources, the exercise of patent protection should be continued, and be subject to antitrust regulation. The Antitrust Law regulates the abuse of patent rights from the perspective of whole interest of society in order to protect the public interest, eliminate barriers to dissemination of technology and reduce the expenditure of public’s enjoyment of scientific and technological achievements, which is the purpose of the establishment of the patent system.The world has entered the era of knowledge economy, countries focusing on the protection of intellectual property, but also do not forget to give the exercise of rights a certain limit. For abuse of patent, countries have already incorporated it into regulation range of the Antitrust Law. Developing guidelines and policy to refine the regulation of patent abuse has become a national legislative trend. From the reality of our economy, abuse of patent has caused serious damage on China’s industrial and consumer, our Antitrust Law on one hand emphasizes on protection of the legitimate exercise of patent rights, on the other hand gives regulation on patent which is misused to eliminate or restrict competition. However, the mere Article55of our "Antitrust Law" provided for the principle, it is difficult to deter and punish the increasingly serious acts of patent misuse, so formulating antitrust enforcement guidelines to regulate abuse of patent, detailing criteria of Antitrust laws regulation on patent misuse, building patent misuse liability system and strengthening the construction of anti-monopoly law enforcement agencies, which are our anti-monopoly legislation should be concerned of in the future.This paper is divided into four sections:The first part is an overview of the problem of antitrust regulation on patent misuse, describes the origin of the legal monopoly of patent, and the basic concepts and elements of patent abuse. Clarifies the criteria for determining antitrust regulation on patent misuse and gives an introduction for a typical acts of patent misuse, by outlining we can have an intuitive understanding about antitrust regulations on patent misuse. The second part is the legal principle analysis of antitrust regulation on patent abuse, from the necessity and feasibility to clarify the theoretical basis and practical basis of antitrust regulation on patent rights abuses, deepen the understanding of this problem. The third part introduces the experience of the other countries and regions in legislation and practices of antitrust regulation on patent abuse, summarizes some enlightenment on legislation of China. The fourth part from our actual situation, analysis the current legislative situation and deficiencies, from the point of ensuring the balance of interests and basing on the national conditions, gives some specific recommendations on perfecting our law regulation, hoping to inspire the development of our anti-monopoly law.This paper is mainly adopted theoretical analysis and comparative analysis. The paper makes the legal principle analysis of antitrust regulation on patent abuse from the necessity and feasibility. In the legal principle analysis, compares anti-monopoly law with other legal norms in different of antitrust regulation on patent misuse, clarifies the advantages of the Antitrust Law, this is also the necessity of antitrust regulation on patent misuse. When analyses this problem, we can compare the foreign-related institutions to our current legislation, and find the deficiencies of the current system, thus to provide a reference to improve our existing legislation. The focus and difficulties of this study is to clarify the criteria for determining patent misuse. As well as analyses the relationship of conflict and consistent between patent law and antitrust law. Through the two issues can explain the prerequisite and theoretical basis to better understand the exercise of patent rights under the Antitrust Law. This paper has two innovations; one is that from our reality focus on analysis of the basic principles of antitrust regulation on patent misuse. The other is from legislative model, legislative principles, criteria, legal responsibility, compulsory licensing and enforcement agencies systematically make some suggestions on patent misuse of antitrust regulation.