Intellectual Property Protection And Restriction In Anti-Unfair Competition

Intellectual property is private right and important part of civil rights. In the rule of law process in training citizen society and strengthen right awareness, the research and protection of intellectual property becomes especially important. At the same time, innovation is an inexhaustible motive force for the progress of a nation; the intellectual property regulation of encouraging and protecting innovation plays a global and strategic role in the knowledge economy wave, takes the commanding height for technology innovation and science & technology development. However, while we emphasize strengthening the protection of intellectual property, it occurs more and more abuse of intellectual property in practice, the rights-holder exercises an improper intellectual property right has brought much negative impact on innovation and competition. The protection and restriction of intellectual property is two balanced methods in protecting the healthy and orderly development of intellectual property system, balancing of interests, coordinating of various conflicts. This problem has especially signification in present China.There is no a unified intellectual property law in China, the protection and restriction of intellectual property rights also needs to solve within the dynamic framework of the competition law at a greater degree. Actually, the protection and restriction of intellectual property defines, distributes and adjusts the benefits generated by knowledge between the individual and the society by law. The author attempts to do economics analysis on the protection and restriction of intellectual property rights under the anti-Unfair competition, from the externality theory especially the Coase theorem and property right theory. The framework of this article is introducing problems--- analyzing problems--- settling problems. To be specific, namely as raising issues- external analyzing-internalizing the externalities-searching the line of between the protection and the restriction-draw the line.After the introduction the topic combined with case, the protection and restriction of intellectual property in the Anti-Unfair Competition Law, this paper then explains and analyses the externalities and internalization of the Anti-Unfair Competition Law by utilizing the external theory. New Institutional Economics representative, Coase, has opened up a broad road to solve the problem of externalities. Besides the government intervention, he put forward the market way to solve the problem of externalities, by using the transaction cost as analysis tool. On the basis of the theory of property right of Coase, this paper put forward the externalities solution of the protection and restriction of intellectual property in the anti-unfair competition:by defining the property rights and allowing transactions, the private negotiations and transaction will naturally correct and solve the externality problems within the legal framework, while the government only plays as the oriented role. Analysis of externalities is to elicit the balance issue between the private property rights and the public interests, which is the key of drawing the line between the protection and the restriction of intellectual property. Anti-Unfair Competition Law embodies double value targets, protection the private rights and Maintenance the public interests (market order). The targets are achieved by means of the adjustment mechanism of interests balance, based on incentive mechanism.This article attempts to provide the law and economics tools for the judge to divide the boundary of property rights protection, instead of proposing legislation or amendment countermeasures. Combined with analysis of the case which is presented in the introduction, the author puts forward two aspects that the judge decisions on the use of externality theory can be divided into:Statically, the judge uses the economic analysis method to analyze the judicial process in the decision-making process, comprehensive measuring multiple factors, including the mode of occupation, the purpose of use, the effect of use, and so on. Dynamically? the judge consider the influences of different judgments on the market-oriented economic life in the decision-making process, instead of only analysis the litigation activity itself, to respond to the changes of intellectual property rights as results of market changes. Protect the intellectual products as property of which the internalization income more than the internalization cost, and restrict the intellectual property of which the internalization cost is more than the internalization income.