Anti-monopoly Regulation On Patent Abuse

In November 2013, National Development and Reform Commission(NDRC) developed anti-monopoly investigation on Qualcomm Incorporated for monopolistic behaviors in China. In January 2015, Qualcomm Incorporated was judged as constituting monopolistic behaviors of abusing market dominant position in wireless standard essential patent license market and baseband chip. Relevant administrative punishment was made corresponding. As a whole, the Case of “Qualcomm Monopoly” is the specific embodiment of monopolistic behaviors derived from abuse of patent right in Qualcomm Incorporated. Qualcomm Incorporated charged patent feeds improperly and constrained package patent license and tie-in sale. These behaviors of abusing patent rights greatly damage legal rights of other competitors in market and consumers. What’s more, it destroys market competitive order of the entire wireless communication field. In order to recover normal market competitive order, the antitrust law in China must govern monopolistic behaviors of abusing patent rights.Based on the Case of “Qualcomm Monopoly”, it can be observed that antitrust law system of abusing patent rights has several problems in legislation, law enforcement and justice to impact governance effects:(1) In the legislation, the anti-monopoly legislation of governing abuse of patent rights is relatively scattered and is lack of anti-monopoly law system for governing these problems. Meanwhile, existing legislation also has multiple principal regulations and has weak maneuverability. There is no clear right relief legislation for victims, so as to impact effects of law enforcement;(2) In law enforcement, it can be observed from the Case of “Qualcomm Monopoly” that law enforcement has some problems, including lagging, insufficient refined degree and superficial effects;(3) In justice, anti-monopoly judicial relief of abusing patent rights in China is not mature. There are lots of contradictory problems in unsmooth connection between anti-monopoly law enforcement and justice, as well as specific judicial procedures.The above-mentioned problems display that if China is facing with an increasing number of monopolistic disputes of abusing patent rights and combines with the specific situation that technical input countries and developed countries use patent advantages to impose pressure on national enterprises frequently, China must reinforce the striking force on monopolistic behaviors caused by abusing patent rights. Under the guidance of insisting in “moderate and reasonable analysis, consistent effectiveness and foresight”, it is necessary to perfect anti-monopoly legal system of abusing patent rights from the perspectives of legislation, law enforcement and judicial system by virtue of relevant overseas legal experience.(1) In legislation, high-level department should formulate uniform anti-monopoly law guiding framework of abusing intellectual property. Moreover, special anti-monopoly enforcing authority should formulate similar anti-monopoly law guidance under the government of the authority. In addition, anti-monopoly relief legislation of abusing patent rights should be improved.(2) In law enforcement, it should establish anti-monopoly law enforcement alarm mechanism of abusing patent rights, reinforce construction of professional law enforcement teams, promote refined level of anti-monopoly law enforcement for abusing patent rights, and also reinforce innovative mode and international communication and cooperation for relevant law enforcement.(3) In judicial system, it is necessary to value construction of anti-monopoly judicial relief of abusing patent rights, try to provide convenience for judicial procedures of victims’ right protection, reinforce connection between justice and law enforcement, and try to establish the legal trinity structure of anti-monopoly legislation, law enforcement and justice of abusing patent rights.