EU Regulation Research On The Abuse Of Intellectual Property’s Dominant Position

EU define intellectual property market dominant position based on market share, market entry and expansion barriers and other factors of the products or services of intellectual property rights, and according to “the particular intellectual property standards” and the “exceptional circumstances standards” to judge whether it constitutes an abuse. In the European Union, the legal basis who regulates the abuse of a market dominant position of intellectual property rights is Article 102 of TFEU( Treaty on the Functioning of the European Union), according to which any firms in EU who are in the position of dominance are not allowed to abuse its dominant position to influence the merchandise trade of member states of the internal market as well as between Member States, and a non-exhaustive list of four ways of abuse.Through judicial practice of regulation on abuse of a dominant position of intellectual property rights in EU, the abuse of a dominant market position is typed into “refusal to license of intellectual property rights”, “tied sale”, “unfair pricing” and “abuse of patent’s regulatory procedures” which is a new type. The EU principle of regulation of abuse of intellectual property’s market dominance position is summed up by cases : in 1988 the Volvo case, in 1995 the Magill case, in 2004 the IMS case, in 1994 the Hilti and Tetra Pak II case to the Microsoft case, and these principles mainly reflected in two aspects: first, “the premise of the principle”, namely “the principle of the right to exercise that distinguished the right to exist”; “the secondary market principles”; “essential facilities doctrine and principles”; “the principle of reasonableness”.For the regulation on abuse of a dominant position of intellectual property rights, despite the implementation of China’s Antitrust Law has changed to some extent the lack of state laws and regulations, but because of regulatory abuse of market dominant position on the relevant provisions are too principled related the problem is not identified specific criteria. Therefore, China should be promulgated as soon as possible Guidelines on Antitrust Enforcement related IP, drawing on the EU’s regulatory experience, that should take the method of Classification Regulation to regulate the abuse of a dominant position of intellectual property rights, and improve the analysis methods about abuse of a dominant position of intellectual property rights, and finally to get the balance of positive and negative effects of competition, in order to encourage innovation and competition in order to maintain and enhance our market strength to participate in international competition.