The Studies on the Abuse of Patent Rights and the Restrictive Measures by the Anti-Monopoly Law
|Keywords||monopoly the abuse of the patent right the Anti-monopoly Law control|
“Without the lawful monopoly, there isn’t enough information to appear, but if endowed with the lawful monopoly, there isn’t too much information to be used.”As a legal monopoly power, Patent right is a sword with double-edged. If used properly, it can′t be only protect and encourage the patentee, but also promote the development of the science and technology and the economy; If used improperly, especially abused to achieving the level of limiting and removing competition, it will be hinder the progress of the science and technology and damage the benefits of the public. At the age of intellectual economic, the patent becomes the key factor to develop the economy. As the patent right may bring high economic profits, the more and more the abuse of patent rights will appear in the society. Especially, the monopoly caused by the abuse of patent rights can destroy heavily the economy. Therefore, it is of great significance to research the monopolies caused by the abuse of patent rights in the field of the patent in the view of The Anti-monopoly Law and build the legal system to control the abuse of patent rights on Anti-monopoly Law.Basing on the understanding of the origin and development of the patent system and the characters of the patent right, we know that the relation between the patent right and the monopoly exists from the origin of the system of patent. The monopoly in itself is given by The Patent Law and rightful, but the patentee are inclined to abuse the monopoly. Starting from the concept of the abuse of patent right, and combining with the form and harm in the process of exercising the patent rights, this paper unfolds the legal analysis of controlling the monopoly caused by the abuse of patent right in the field of the patent on Anti-monopoly Law. By means of revealing the meaning of the monopoly regulated by The Anti-monopoly Law, this paper states in detail the relation between the monopoly regulated by The Anti-monopoly Law and the abuse of patent right. That is to say, the monopoly regulated by The Anti-monopoly Law is different from the monopoly which is embodied in the patent right, meanwhile, the abuse of patent right isn′t equal to the monopoly regulated by The Anti-monopoly Law. Although the abuse of patent right in the process of exercising is the point linked the patent right with The Anti-monopoly Law, only the abuse of patent right reaching the level of the monopoly regulated by The Anti-monopoly Law should be controlled by The Anti-monopoly Law. After the relation is up to height between The Patent Law and The Anti-monopoly Law, we find the consistency between the executions of The Anti-monopoly Law and the protection of the patent rights in the field of the patent. Therefore, we should hold the principle and boundaries where The Anti-monopoly Law controls the monopoly caused by the abuse of the patent in the field of the patent. Throughout the Legal system controlling the abuse of the patent the different perspectives and qualities by The Patent Law, The Civil Law and The Anti-monopoly Law, we can see the obvious advantages where The Anti-monopoly Law controls the monopoly caused by the abuse of the patent in the field of the patent.Moreover, this paper investigates the latest practices of some countries, such as the America, The European Union, the Japan, the International Practice of controlling the abuse of the patent right by the anti-monopoly law, including the attitude and principle which The Anti-monopoly Law treats the abuse of the patent right and the specific regulations and the Law enforcement agencies. Then, compared them deeply, they can provide some reference to help our country build the system on the abuse of patent right by The Anti-monopoly Law.Presently, the legal systems of our country on regulating the abuse of patent right are scattered and can’t be connected effectually to The Anti-monopoly Law, which can’t be applied completely to solve questions. At the same time, our country encounters the severe situations where market competition is damaged owing to the abuse of patent rights by foreign companies. Building and perfecting the system on regulating the abuse of patent right by The Anti-monopoly Law is urgent. According to China′s status quo, this paper puts forward some conceives about the system on anti-monopoly in controlling abuse of patent rights from different aspects.