Study On The Regulation To The Abuse Of Intellectual Property

With the development of economic globalization, to promote technology development and innovation, intellectual property that as a monopolistic and empowered right has been more and more important for every country in the world. However, if it only focus on the monopolistic portion of intellectual property, the effect would damage public advantages and emerge some negative influences of technology development, then the situation must change the primal purpose of intellectual property. Consequently, the issue of balancing the scale between right protection and monopolistic portion has been the significant problem for developing countries in recent years.By searching the system of intellectual property in China, we can find the legal institution between protection of intellectual property and anti-monopoly system is still in a primitive stage now; and depends on 55 th item of Anti-monopoly Law, legislation guidelines and legislation setting are incomplete in China. So the monopolistic events by abusing intellectual property are difficult to sort and study in this situation. After according TRIPS agreement by more than 100 GATT members, the restriction of patent right which includes intellectual property has been extremely strict. Therefore, based on a primitive legislation system, securing public advantages by using the items of TRIPS agreement is really difficult for Chinese government. That’s why the developed countries, especially the US, think of that the protection of right owners in developing countries is inconsistent with TRIPS agreement, and always judge the economic activities of developing countries by some of the TRIPS items which excessively protect right owners.On this basis, through the present situation of intellectual property rights,combing the advanced experience of developed countries, the legislation idea and specific rules and regulations,with China’s basic national conditions,I put forward the improving suggestions to this problem of our country.Mainly include the following aspects:First, in the macroscopic aspect, establish a complete system of regulation of abuse of intellectual property rights, establish two principles should be adhered in regulating the abuse of the system,to protect and prevent the abuse of intellectual property rights in equity and to strive for the best interests of our country in accordance with the international convention.Secondly, through the analysis of the importance of existing guidance documents,call <On the field of intellectual property antitrust enforcement guidelines> enacted as soon as possible.The "guide" should also regulate both the domestic market and international market of the abuse of intellectual property rights,establish the principles like China’s <anti-monopoly law> also applies to cases involving foreign elements.In the details,the scope of the proposed expansion of the content of the regulation,regulation of abuse of intellectual property rights existing mainly manifests in two aspects of patent right and copyright,But does not include the right of trademark,it should be increased.Secondly, determine the scope of protection of intellectual property rights and the abuse of boundaries,put forward in two aspects of legislation and law enforcement should be carried out international cooperation at the same time,especially the enforcement should set up a special department in cooperation with other countries.Finally, suggestions to perfect the anti-monopoly law enforcement agency,regulation of abuse of intellectual property should be unified by the Administration for Industry and Commerce of China,and should set up relief departments in judicial institutions.Through the above suggestions, the author hopes to prevent abuse of some problems to make their own contribution to help China’s intellectual property system.