| The abuse of intellectual property (the IP abuse) is the conduct that the right holder violates laws when he exercises his intellectual property, including refusing or restraining the use of intellectual property unreasonably. In international trade, the IP abuse becomes a substantial threat to the process of trade liberalization, hinders the transfer and diffusion of new technology, and at last harms the welfare of the whole world. The distortions to international trade have caused extensive concern of international community: some major international organizations like WIPO began the legislative attempt very early on the regulation of the IP abuse; the TRIPs Agreement inherits and develops this ideology, explicitly stipulates the basic principles to prevent the IP abuse and establishes a more powerful regulation system. Through the legislative reform and the continuous accumulation of cases, main countries and regions in the world as the USA and EU have built their own standards and the executive models. The Anti-monopoly Law of PRC which has come into force on August 1, 2008 also adopted the anti-monopoly rules to prevent the IP abuse in Article 55. Nevertheless, due to the discrepancy with other laws and the lack of further detailed rules, the Anti-monopoly Law of PRC needs to be further improved. This paper starts with the basic theory of the intellectual property rights, discusses the origin of the IP abuse and its definitions in international law as well as in different countries, and clarifies the basic concepts of the IP abuse. Then it reviews the link between the international trade and intellectual property, analyses the regulation of the IP abuse in the TRIPs Agreement and other conventions comprehensively. We will choose the USA and EU as research objects; scrutinize the history evolution and the judicial practice of their IP abuse regulation, research the related rules and principles combined with case study. Finally, based on the review of the current legal system about the IP abuse in our country, this paper points out the problems and offers several helpful suggestions to the establishment of our own IP abuse regulation system. |
