Antitrust Law On Abusive Behaviors Of The Intellectual Property Under China And South Korea Comparison

The Intellectual Property Law tends to confer rights of monopoly and exclusiveness to people who enjoy the rights, to encourage the innovation enthusiasm of inventers. On the one hand, rights of monopoly and exclusiveness can help to protect the intellectual property, but on the other hand, they can cause monopolization, which will raid the market competition order, and exclude or limit competition. In this case, Antitrust Law should take effect to maintain the normal market competition order when people who enjoy the rights abuse the intellectual property to raid the market. Intellectual Property Law and Antitrust Law don’t contradict with each other, but have the same legislative intent and are complementary to each other. What’s more, according to the legal principle of patent rights abuse, when the abusive behaviors of patent rights go beyond the limitation of Patent Law, Antitrust Law and other competition laws should impose restriction on the exertion to solve the exertion’s low competitiveness problem in public sphere. And this practice has become common in various countries in the world. Antitrust Law has a long history in America, European Union (EU), Japan and other developed countries and regions, and the legal system and provisions are relatively mature. These countries and regions also have rich experiences in Antitrust Law regulations on abusive behaviors of intellectual property. In legislative process of Antitrust Law, both China and South Korea take experiences of America, EU, Japan and other countries as reference, and are greatly influenced by their regulations of Antitrust Law on abusive behaviors of intellectual property. For this reason, it is very necessary to look into the relevant legislation process and regulations of typical countries before carrying out the comparative study of regulations on abusive behaviors of intellectual property between China and South Korea. America governs the abusive behaviors of intellectual property with laws like The Sherman Anti-trust Law, Clayton Act, and Federal Trade Commission Act, and EU with TFEU. Compared with America, EU’s competition law has clearer regulations on abusive behaviors of intellectual property. Both America and EU stick to the economic analysis principle to study the behaviors of exercising the rights of intellectual property. In rare cases, rule of per se illegal is directly applied, and in most cases, rational principle is being used to make the analysis and evaluation. For Japan, it adopts the similar practice to EU in Private Antitrust Law, dividing the restrictive clause into black clause, grey clause and white clause. At the same time, based on the practical situation, Japan makes an utmost effort to conduct a tight rein on abusive behaviors of intellectual property through the Antitrust Law. With regard to abusive behaviors of intellectual property for America, Japan and EU, although there are differences in type and judgment standard, they all accept the complementary relationship between Intellectual Property Law and Antitrust Law, and all will apply the Antitrust Law to govern the abusive behaviors when intellectual property is abused. On the basis of comprehensive applicable theory, South Korea applies Fair Trade Law to judge the validity of behaviors of exercising rights, and The Guidelines for the unfair abuse of Intellectual Property rights details the main principles which should be adhered to in the process of illegality judgment, and the considerations, such as relevant market, contrastive analysis on impairment effect of fair bargain and the effect of efficiency improvement; specific criterion, such as general incense standard, patent alliance, correlative technical standard, abuse of patent litigation, improper reconciliation of patent dispute; exemption doctrine and so on. At the same time, China put Antitrust Law into force in 2008, prescribing monopoly agreement, abuse of market dominant position, concentration of business operators and other monopolistic conducts. With the regulations mentioned above, China still lacks the antitrust law enforcement guide to detail the regulations on abusive behaviors of intellectual property, and this is concerned with China’s history and specific national conditions when antitrust law was legislated. China’s current Anti-trust law enforcement guidelines in intellectual property field (the fifth revision) prescribes the basic analytical framework of Anti-monopoly law enforcement in the intellectual property field and also the anti-monopoly analysis of common and specific intellectual property exercise behaviors and so on. China and South Korea differ in laws and regulations on governing the abusive behaviors of intellectual property and there is a slight difference in the legislative intent between China’s Antitrust Law and South Korea’s Fair Trade Law. The two countries’independence of antitrust law enforcement agency, and the formulation related to abusive behaviors of intellectual property are also different from each other. Based on the comparative study, South Korea should perfect the 59th regulation of Fair Trading Law, while China should perfect the regulations about related concepts in Antitrust Law, and accelerate to formulate guides on antitrust law enforcement in intellectual property field, and solve the problems of antitrust law enforcement agency not having independence and so on. The measures above are to perfect the legal system of intellectual property in both China and South Korea and prevent the happening of abusive behaviors, to maintain a favorable market competition order.