Study Of The Abuse Behaviors Of The Intellectual Property In The Perspective Of Antitrust Laws

Currently in the context of the knowledge-economy, intellectual property rights have become an increasingly critical factor of production, and also have had a significant impact on the development of the social economy. The nature of intellectual property rights are monopolistic rights created by laws. As a patent law for the first real sense in the modern history, the British Patent Law enacted on May 25, 1624 was named Statute of Monopolies, which meant that intellectual property rights were the type of private laws and the rights holders were entitled to exercise the rights exclusively within the scope vested by intellectual property laws, and such exercise shall not subject to the regulation of antitrust laws. As the importance of intellectual property rights in the products, technologies and services market increases continually, however, it is found that, in order to reap more profits, the rights holders start to ally with other intellectual property rights holders or licensees, or separately to abuse theirs rights, including without limitation establishment of patent pool, monopoly license, refusal to license and ultra-high pricing.The granting and utilization of intellectual property rights are not only related to the personal interests of the right holders or their counterparties, for the legislative purpose and aim of intellectual property laws, they are also carry the missions of promoting scientific and technological progress and improving the public welfare inevitably. The abuse of intellectual property rights could cause damages to the competition in the relevant market, infringe the interests of customers, and hinder the development of science and technology in national economy. From the perspective of intellectual property rights being private rights, the prohibition of abuse of rights of the civil laws principle is not enough to relieve and bring remedies to the victims who are not direct opposite parties of the abuse behaviors. In addition, the simple uses of civil remedies or private law regulation methods also have limitations. And then, as social interests oriented, economic democracy principle based and along with the regulations of a majority of civil methods and administrative and criminal necessary methods, the function of antitrust laws plays particularly prominent role in regulating the abuse of intellectual property rights. Either from the perspective pf the value, pursuit and purpose of laws, or from the point of the fitness between the abuse of intellectual property rights and regulations of antitrust laws, intellectual property laws and antitrust laws are inextricably linked. Focusing on the so many cases of the abuse of intellectual property rights, the awareness of studying on how to build a unified antitrust system of regulation of the abuse of intellectual property rights and strive to perfect it is rising and it is an important mission of who studies laws of this era.A research path of introducing, analyzing and solving the problems was adopted by this dissertation. Through a total presence of the common phenomena of intellectual property rights abusing in today’s globalized economic activities which result in severe limitations and exclusions of competitions, commencing from the point of the relationship between Antitrust Laws and Intellectual Property Laws, meanwhile from the perspectives of spirit of competition and social-based value of these laws, it illustrated that, in the case of legally and properly utilizations of intellectual property, intellectual property rights and Antitrust laws has concerted, and in the case of the abuse of intellectual property rights, the Antitrust law is expected to play its role as a social-interests oriented law. In the preamble, the dissertation introduces the phenomena that abuse of intellectual property rights economy gradually widespread and the urgency of the legal regulation of them. On this basis, the dissertation has consisted of four chapters as follows:The first chapter of this dissertation describing several typical infringement cases or events of intellectual property encountered by Chinese enterprises in both domestic and international trades and competitions, which reveals the indifference of the consciousness of anti- abuse of intellectual property with antitrust laws in our country’s enterprises and reflects the insufficiency of legislative framework and judicial practice for the regulation of intellectual property abuse. Though a general conception, this chapter aims at revealing the hazards of abuse of intellectual property and promulgating the importance to improve the antitrust regulation system the abuse of intellectual property rights.The second chapter is about the analyses of these specific and different kinds of abusing behaviors of intellectual property rights. In the utilization and licensing processes related to intellectual property rights, there are various abuses of intellectual property rights, including without limitation the disguised extension, refusal to license, price discrimination, abusing of essential patent and imperative grantback. This chapter deconstructing these abusing behaviors of intellectual property rights from their respective subject elements, object elements, subjective elements and objective elements, because the differences in monopoly bodies, the injured parties, the monopoly intentions and expressions of monopolistic behavior, in direct and monopolistic practices monopoly intentions, are directly related to the cognizance principle of this kind of monopoly, who to bear the illegal consequences, as well as who has the right to claim for compensation. Such analytical method has certain significance for antitrust enforcement related to intellectual property rights. This chapter also gives attention to legal rules or judicial practices of the corresponding type of the abuse behaviors in other jurisdictions, to pave the way to discuss the improvement antitrust regulation system of abuse of intellectual property rights by using beneficial experience of other jurisdictions.The third chapter is the theoretical analysis of regulating the abuse of intellectual property rights under the perspective of antitrust laws. This chapter is beginning with the understanding of the relation between antitrust law and intellectual property, which has developed from the theory of “conflict” to the theory of “complementarities”. In the contemporary point of view, it shall always distinguish the exercise of intellectual property rights from the abuse of intellectual property rights, which are two completely different behaviors under the laws. The abuse behaviors limit and exclude the competition which are in violation of the purpose of both two laws on safeguarding innovation; however, limited to the civil law perspective of intellectual property rights, the rights holders’ behaviors of departing from the scope of intellectual property and abusing intellectual property rights cannot be effectively regulated and punished. However, as “economic constitution” and “corporate freedom charter”, antitrust laws overcome limitation of intellectual property law with its public law nature, and they can also prevent and restrict the abuse of intellectual property rights on the basis of good regulation system. Based on the forgoing, this chapter builds a theoretical foundation of regulating the abuse of intellectual property rights with antitrust laws.Regarding to the insufficiencies of the legislation and enforcement, the last chapter is intended to provide some suggestions to establish a sound antitrust legal system, to curb the rampant abuse of intellectual property rights. Currently, there is some legislation about regulating the abuse behaviors, however, the regulation is not comprehensive, and formulating a unified antitrust guideline is one of legislation choice for consideration. In addition, there are also some aspects to be advanced in the antitrust enforcement, such as the public interests litigation of the monopoly. Given the particularity of the behaviors of the abuse of intellectual property compared with the common monopolistic behaviors, in the process of cognizance of the abuse of intellectual property rights, it is necessary to cooperate with intellectual property authorities, and the establishment of specialized IP-antitrust law enforcement agencies may be feasible.The improper utilization of intellectual property rights makes it break through the scope of the statute, which results in the consequence of the restriction and exclusion of competition and etc., and then enters into the perspective of the antitrust regulation. The central issue to be addressed of this article is to sort out how to use antitrust law to achieve both the avoiding of excessive encompasses antitrust laws tentacles and effective regulations of intellectual property rights abuse. Overall, through case analyses, comparative analyses and multidisciplinary comprehensive analyses, based on the learning of domestic and foreign research on the abuse of intellectual property rights, this dissertation focuses on deconstructing the elements of specific behaviors of intellectual property rights abuses which are causing or in an attempt to eliminate competition and to create monopolistic advantages. This dissertation also conducts comparative studies between our country and other countries in the antitrust regulation of abuse of intellectual property from different points of view, including the legislative style, specific rules and enforcement practices. In this dissertation, the hope is that, by analyzing specific manifestation of abuse of intellectual property rights and putting forward some constructive advices, it may be helpful for designing a valuable IP-antitrust legal system to protect competition and safeguarding the public interests, thus contributing to the progress and development of the society as a whole.