Research On The Application Of Anti-monopoly Law To The Abuse Of Patent Right

With the establishment and development of patent system, numerous patenttechnologies have been widely used. A growing number of the patent holders hadmisused the patent right to benefit more. Combined with the global economicintegration acceleratation, this kind of misuse was spreaded quickly, and also becomean urgent problem need to be solved. Considering the patent system established inour country is no long time, and our country is in transition period, which need thepatent system to encourage innovation and promote technological progress, thereforein the existing legal norms, including patent law, the protection of patentee’s right isthe most legislative purpose. So far, there has no law established for patent misuse inour country. The law regulates patent misuse only when this misuse is themanifestation of a certain illegal conduct.Patents as a legal monopoly rights conferred by law, their illegal abuse can leadto illegal monopoly much easier, so the anti-monopoly laws should be used as thecore of the patent misuse regulation. anti-monopoly laws promulgated andimplemented in our time is not long, and the principles of its provisions are moredifficult to be directly applicable to the regulation of abuse of patent rights. Since thepatent is intangible property that reflects human wisdom, anti-monopoly law’sregulation of patent abuse either from the perspective of law enforcement or judicialapplication, has a certain complexity. We need to combed and analysis itsystematically in order to establish a relatively complete and efficient anti-monopolyregulation system for patent abuse.As the concept of "patent abuse" has no unified standard in the academic circles,it is necessary to make some concept discussion. The developed countries, such asUnited States, have accumulated a lot of successful experience in anti-monopolyregulation of the patent abuse. Learning experience from other countries can create agood condition for our country in the field of patent system development.With patent technology has been widely applied in real life, the phenomenon ofpatent abuse is also increasing and its specific performance is increasingly diverse. Itis necessary to classify the action of misuse patent, and discuss the special abuseaction on the basis of commonness. Since anti-monopoly laws are used to regulatethe patent abuse, it is bound to classify patent abuse forms according to thecharacteristics of the three forms of monopoly. In addition, select more typical patent abuse action in different monopoly forms to make a specific analysis, such as "patentpool","patent tying" and "standard patent hijacked". A variety of issues, whichreflect its behavioral characteristics will appear during anti-monopoly law regulation,such as anti-monopoly regulation problem for different forms of patent pools, theburden of proof of patent tying.In addition, the anti-monopoly law regulation of the patent abuse is complex inapplication. It also determines that it will have the same problems in the process ofthe relevant law enforcement. Considering that the patent system and antimonopolysystem in our country are both new, and lack of relevant significant guiding andstrong operational norms. It is necessary to introduce a special patent misuseanti-monopoly enforcement guideline. Secondly, in order to improve the efficiencyof law enforcement, the setting of the special anti-monopoly enforcement authority isvery necessary. Finally, as the patent abuse has the characteristics of cross regions,expanding the extraterritorial scope of enforcement of anti-monopoly can effectivelycontrol an adverse effect of competition in the market caused by the extraterritorialpatent abuse.