Research On The Antitrust Law's Regulation In Patent Tying

Patent is a legal property right,has exclusive and in rem.In a broad sense,we can consider that it is a monopoly or a legal monopoly,which the purpose is to give certain monopoly benefits to the patentee.In this way,more and more members of society can devote themselves to inventing and improving technology.However,legal monopoly has brought substantial impact on the public.If not regulated,it will endanger society,such as patent tying is a typical phenomenon.Illegal tying is a significant object in antitrust law,which will extend operator's market dominance to tying good's market.It is generally believed that patent tying will result in adverse consequences,such as disrupt market order or reduce consumer's welfare.Therefore,we must use antitrust to regulate the illegal tying.Whether patent tying need to be adjusted by antitrust law? How can we balance patent protection and antitrust? Whether the analysis method of patent tying and tying are same? Take these into account,this article takes patent tying as the research object,and tries to regulate it.In the course of studying,research approach that I adopt “find issues-analyze issues-solve issues”.Then integrate extraterritorial legislation and judicial practice,explores the path of antitrust regulation of patent tying.The article can be divided in four parts:First of all,Starting from issues caused by patent tying,the article sort out practical harm and problems which might arise.The practical hazards include undermining market competition order,harming consumer's welfare,evading price regulation;Legal problems include that patent law and antitrust law's in conflict which leads to the lack of theoretical basis for antitrust law regulation;the legal system for regulating patent tying is incomplete and it is difficult to identify patent tying's monopoly.Secondly,This section focuses on the above issues and performs jurisprudence analysis.Starting with traditional theory,the article discusses the relationship between "Commons Tragedy" and "Anti-Commons Tragedy" theory?the prohibition of patent misuse doctrine?monopoly leverage theory?benefit balance theory and patent tying.Found the theoretical basis for antitrust law to intervene in patent tying.Then Using legislative practice and academic research to solve specific legal issues.In the third part,the article uses the research method of comparative law.Through the study of the advanced legislative and judicial practices of the United States,the European Union and Japan,which sorts out the different regulatory system and the different legislative models selected by each country.Therefore,the useful experience can be summarized and reflected and hope to take references from foreign countries to perfect our system.Finally,on the basis of analysis and reference,the article puts forward suggestions on how to regulate patent tying from the macro and micro levels respectively.At the micro level,first,put the social public as the fundamental and establish the basic position of competition policy;second,take the rule of reason analysis as the basic principle;third,build a sound legal regulatory system.At the micro level,we should clarify the elements of a patent tying and perfect the exemption reason of patent tying.At last but not least,we should establish antitrust public interest litigation to prevent patent misuse.