Study Of The Antimonopoly Law Regulation Toward The Abuse Behaviors Of The Intellectual Property

In recent years,the emergence of new phenomena in the new economy has brought confusion and challenge to the traditional Antimonopoly regulation system.For example,as Intellectual property gradually becomes a key production factor,many multinational corporations no longer exercise intellectual property rights as a legally-protected right,but rather take the advantages of intellectual property rights to maintain their competitive advantages by refusal to licenses,tying and charging unreasonable fees.As an "imported product",the design of the intellectual property system has always weighed private rights against the public interests.China's Antimonopoly Law has only been in place for more than a decade,and the study in the use of Antimonopoly methods to regulate the abuse of intellectual property rights has just begun.But the importance of the research is self-evident.The relationship between intellectual property and Antimonopoly law have been discussed for decades,as well as the rationality of the use of Antimonopoly laws for the misuse of intellectual property rights.This dissertation focuses on the internal value of intellectual property system and anti-monopoly law,analyzes the rationality of using anti-monopoly path to regulate the abuse of intellectual property rights,and selects domestic and foreign cases focusing on the various types of behavior that abuse market dominance under intellectual property rights threshold.This dissertation also analyses the theoretical framework of abuse market dominance under intellectual property threshold,examines the legislative practice and judicial practice experience in the United States?the European Union and Japan.The survey of the United States and the European Union is based on the historical evolution of the theory of intellectual property abuse,and the study of the evolution of the theory in different periods is the basis for the introduction of anti-monopolyguidelines on intellectual property abuse.However,Inspecting the theoretical frontier of cross-cutting fields between China's anti-monopoly and intellectual property rights is the basement of Antimonopoly Law Guide for the Abuse of Intellectual Property.In order to put forward reasonable suggestions for our country's Antimonopoly guide,this article will also comment on the consultation draft.The dissertation is divided into four parts.Chapter one,section one,discusses the intrinsic value of intellectual property system from the angle of "tragedy of Commons" ? "tragedy against Commons" and negative external economic effect of intellectual property system.The second part explains the abuse of intellectual property from the legal dimension,and the limitations of dealing with the abuse of intellectual property under civil law system;the rationality of regulating the abuse of intellectual property under the framework of economic law are listed.The“constitutional status” of the anti-monopoly law in the economic law system and its multiple values such as fairness and efficiency embody the natural advantages and internal fits used to regulate the abuse of intellectual property rights and correct the consequences of damages.That is the basis of anti-monopoly law to regulate the misuse of intellectual property rights.Then the dissertation solves the apparent contradictory between intellectual property and Antimonopoly law,and reiterates the theory that Antimonopoly law has great value on the correcting the misuse of intellectual property.Neither theory nor practice can be ignored.In chapter 2,the author chooses the angle of abuse of market dominance in the framework of anti-monopoly law,analyzes the specific types of abuse of market dominance in the field of intellectual property rights,and probes into the deficiency of the regulation of abuse of market dominance in practice.This chapter focuses on the influence of the definition of relevant market,the characteristics of intellectual property on the definition of dominant position of market and the analysis of abuse of dominant position of intellectual property by value judgment.These all show the importance offormulating a guide to unify the practice of the abuse of intellectual property rights in antitrust regulations in China during the course of practice.In the third chapter of the dissertation,the author firstly takes the historical experience of antitrust legislation of the United States as the object of review,sorts out the historical context on the issue of the misuse of intellectual property rights,and focuses on an analysis of the 1995 Guidelines and the 2007 Report.Secondly,taking the EU competition law as an examination object,this chapter analyzes the EU competition law's insights on the issue of intellectual property abuse,and finally analyzes the “Guide to the Anti-Monopoly Law on the Use of Intellectual Property” of Japan which was revised in 2016.Combining the legislative experience and practical operation of the United States and the European Union,we will consider how to design the system in the process of localizing foreign theories and legislation in order to make China's "Guide to Misuse of Intellectual Property Anti-Monopoly Law" take root and better adapt to the national conditions.The fourth chapter focuses on the anti-monopoly law guide on the abuse of intellectual property rights in our country,the draft of consultation,and the formulation of the draft of consultation and analysis of the main body and the drafting structure.And finally analysis of the draft of consultation and the content of the third chapter,that is,the focus of intellectual property abuse of market status under the threshold of the detailed analysis of anti-monopoly regulation.Based on the current legislation and practice of anti-monopoly law on abuse of the dominant position of the intellectual property market in China,and drawing on the development trajectory and theoretical frontier of the European Union and the United States on this issue,the author hopes to sum up some enlightenment in the aspects of intellectual property protection and anti-monopoly regulation concept,so as to put forward some reasonable suggestions for the formulation and improvement of anti-monopoly law guidelines.Generally speaking,this dissertation takes the negative external economic effects of the intellectual property system as the starting point,discusses the starting point of the misuse of intellectual property rights,and concludes that theanti-monopoly legal system under the framework of economic law is used to rectify the damage of the abuse of intellectual property.But it does not stop there.The theory of the long-term legislative practice and judicial practice in Europe and the United States is "fruitful".By contrast,the practice of China's Antimonopoly Law is inadequate.We need an anti-monopoly guide that can effectively guide the practice.On the basis of this,the author analyzes the validity of the draft and puts forward some opinions in order to have a certain reference significance for future legislation and practice.