Study On Regulation Of Antimonopoly Law On Refusal To Patent License

As China economic development, the IP will take the important rolein economics and GDP value. But IP misuse cases appeared continuously.For example, there are“DeXian case”,“DVD case” and “HuaWeicase”accured in past years, which are connected with antimonopolyregulation to IP misuse, especially related to regulation of refusal topatent license. While China market enterprise faces to this kind cases,the issue is that there is no applicable rule to protect themself or therule itself which is not clear and practicable for enterprises to abjectthe patent holder, This kind of issue reflects the shortage of legislationin the area of antimonopoly on refusal to patent, like lack of rule ofthe essential facility application in “DeXian case”;lack of patent poolregulation in “DVD case” and lack of guideline for the antimonopoly torefusal to patent license in “HuaWei case”. This paper first introducesthe current status about monopoly regulation on refusal to patent license,point out the defects of legislation in this area, and analyzes the legaltheory on regulation to refusal to patent license, then introduces thelegislation and legal practice regarding to antimonopoly on refusal topatent license in EU and the United States, then analyzes the essential facility rule and patent pool regulation, lastly from the view of currentlegislation and practice, give the corresponding suggestions.The first chapter is to analyze the shortage of regulation ofantimonopoly on refusal to patent license. First introduces3cases andreview the issue for each case, and then introduce the current legislationin the area of monopoly regulation on refusal to patent license. The lastis to analyze the defects of current regulation of antimonopoly on refusalto patent license, especially about the rule of essential facilities,patent pools refusal to license and unilateral refusal include withconditional faces.The second chapter analyzes legal theory of antitrust regulation onrefusal to patent license. The first is to give the general concept ofthe patent right, freedom of contract and general understanding ofantitrust, then analyze patent exercise, and constraint of contractfreedom and the value of the antimonopoly law, the second is to introduceinterest balance principle regarding to antimonopoly on refusal to patentlicense from the point of patent system and antimonopoly value, the lastis to introduce the legal theory of no misuse of right, from view of noabsolute freedom and monopoly is ruled not rights itself by antimonopolyregulation.The third chapter reviews the antimonopoly on refusal to patentlicense in the United States and EU. First introduces the legislation ofantitrust regulation on refusal to patent license in US and EU, thenanalyzes the cases, the next is to introduces the analysis method ofmonopoly on refusal to patent license from the facts of related market,market power, essential facility, and analyze the guideline ofantimonopoly to patent pools refusal to license.The fourth chapter gives the opinion on the necessary of building therule of antimonopoly guideline on refusal to patent license. First is to point out the fires step is to solve the problem regarding guidelinebuilding process itself, and then to suggest the detail guideline onantimonopoly rule on patent refusal, and the last is to suggest unifyingthe legal enforcement organization to improve the efficiency.