Anti-monopoly Law Regulation Of Intellectual Property Refused Permission

As a legal monopoly, intellectual property right has exclusivity. The design of theintellectual property system, can be regarded as a double-edged sword. On the one hand, itcan promote innovation,thereby enhancing consumer welfare; on the other hand, as a kind oflegal monopoly and exclusive right, it often make the obligee has dominant position in aparticular market. Some rights holders may abuse of the dominant position under theprofit-driven and exclude competitors, that destroy the normal order of market competition.The above-mentioned phenomenon of abuse has become common occurrence, especially inthe context of globalization. It is more serious that multinational companies using hismonopoly, through the exercise of intellectual property right, set all kinds of technical barriersto suppress the local Chinese enterprises. Research shows that, permission refused inintellectual property is the most common phenomenon of abuse among a variety ofintellectual property abuse which the multinational companies in China implemented. Thisbehaviour has increasingly become the main means of multinational companies to excludecompetitors. So, this paper will take the most common intellectual property abuse as theresearch object, analyze the illegality of such behavior, and under what circumstances shoulduse anti-monopoly law on the regulation. This article will further put forward specificsuggestions which can improve and perfect our regulation of anti-monopoly law aboutintellectual property rights of refusing to license. The above research aims to form a goodmarket competition order, and eventually benefit the consumers.In structure, this paper is divided into the following parts:The first part is “cisco sues huawei”, this section briefly describes the case, then leads tothe problem to be studied in this paper through the analysis of the dispute between the parties:since it is a fundamental right of the obligee to refuse to permit the holder of the intellectualproperty right, whether it should be regulated by the anti-monopoly law? If should, whether itshould be limited about using anti-monopoly law to regulate the refuse licensing issues? Thismeans in what situation and extent of refusing to permit the antitrust laws are needed tointervene?The second part of “the present situation about intellectual property refused permissionantitrust regulation” answers the first question above. This part comes to the conclusion “refusing license should be governed by the anti-monopoly law” through summarizingEurope and the United States’s judicial practice and legislative practice of typical countries.Then this part demonstrates the conclusion from theoretical basis and reality basis twoaspects.The third part of “the constitutive elements of the intellectual property refused to licensewhich violate the antitrust laws” elaborates the various constitutive elements. First of all, itanalyses the main elements from the definition of relevant market and the determination ofdominant market position two aspects; then analyses the behavior elements: the abuse ofdominant market position, to fulfill this elements should have behavior of refusing to license,and the behavior caused substantial damage to competition; finally analyses the subjectiveelements: the lack of reasonable reason and motivation, it lists the factors to be considered inthe determination of whether reasonable reason and motivation. Through the analysis of theabove elements, it answered to the second question above, specified under whatcircumstances the refusal to license behavior should be regulated by the anti-monopoly law.This part also concretely analyzes the case of cisco sues huawei, and judges refusedpermission behavior of cisco company.The fourth part of “the regulation of anti-monopoly law on intellectual property refusedpermission in China” is divided into two parts. First, it points out the problems existed in theregulation of anti-monopoly law on intellectual property refused permission of China. Theproblems is analyzed in detail from legislation, administration of law and legal responsibilitythree aspects. Secondly, it puts forward suggestions to improve according to the problem.