The Research On The Refusal Of Permission In Intellectual Property Right From Anti-Monopoly Law

As a legal monopoly right, the intellectual property right (IPR) is an important mechanism design to drive the progress of science and technology, economic prosperity and social development, so it is usually as an exception to the application of anti-monopoly law. However, the IPR as exclusive right often makes its owner get monopoly or dominant status in a certain market which restricts the market competition, especially in some circumstances the owner may abuse the exclusive right and perform unfairly the IPR to restrict the market competition illegally, as such violating the anti-monopoly law.Making the'refusal of permission in the IPR'which is suspicious of performing the IPR unfairly as a research object, and from the of jurisprudence and comparative law, the thesis discusses the application of the unfair performance in the anti-monopoly law,and puts forward concrete advice on the control of abusing the refusal of permission in the IPR so as to make the theories of anti-monopoly law and the IPR law. In the meantime, the pertinent theoretical basis and concrete reference opinions are also brought forward on our on-going anti-monopoly legislation and its future legislation on the IPR field.The thesis holds that as for the IPR especially for the patent, the discretion to authorizing or not is its core right content, so in usual circumstance the refusal of authorizing by the owner of the IPR is not illegal. But once the owner's such conduct may cumber, restrict or even eliminate competition and by thus damaging the social public interests, it is necessary for the anti-monopoly law to interfere.However, as to a concrete permission refused in the IPR, how to classify whether it constitutes the prescribed object or not is a disputed focus in the theory and practice, and it is also a rub in the application of anti--monopoly law of the permission refused in the IPR. Starting from the four modes of the permission refused in the IPR, the thesis discusses the relevant law and regulation on the cognizance of the illegality of the permission refused in the IPR to give some guidance to the cognizance. As for the legal remedy of permission refused in the IPR, the thesis thinks that the main approach is to exert the obligation of compulsory permission to the owner of the IPR, including the positive compulsory permission and passive compulsory permission- refusing to award the injunctive by the court to restrict the IPR owner's monopolizing markets.The thesis is formed of five chapters in structure:The first chapter is'permission, permission in the IPR and permission refused in the IPR'which briefly introduces their concepts, nature, characteristics and their relations with the anti-monopoly law.The second chapter'the cognizance of the illegality in the anti-monopoly law of the permission refused in the IPR'is an emphasis in this thesis. The chapter, starting from the four kinds of the permission refused in the IPR, analyzes their respective conditions in the establishment of violating the anti-monopoly law. In the cognizance of the illegality in the anti-monopoly law of the four kinds of permissions refused in the IPR, the writer believes that for the modes of permission refused such as combined permission refused, conditional permission refused and exclusive transaction, the traditional theory of the anti-monopoly law can give enough theoretical support, but for the cognizance of the illegality of purely unilateral permission refused, it is necessary to introduce the theory or method of'key establishment', presumption of rationality and counter evidence to review and prove. The third chapter'the legal remedy to the permission refused in the IPR'introduces in chief the legal norms after the cognizance of the permission refused in the IPR. This thesis mainly considers the issue in remedy level, holding that the remedy to the victims of the permission refused in the IPR is the compulsory authorizing, including the frontal compulsory permission and awarding the injunctive by the court.The fourth chapter'the discussion on the issue of anti-monopoly legislation on our country's permission refused in the IPR'analyzes chiefly the monopoly problems faced our country's IPR domain and puts forward the countermeasures and schemes to these problems.The fifth chapter is Conclusion that summarizes the main opinions of the thesis.