Study On Regulation Against The Abuse Of Intellectual Property Right Through The Competition Law Of European Community

As a company with protection of intellectual property, the abuse of intellectual property right has become a new problem. How to use the rules of competition law to regulate effectively such abuse is being a hotly-discussed issue challenging both the developed countries and developing countries.Take a view from the world, there is no doubt that the European Community (EC) is one of the leaders in this field due to its rich experience in settling the conflict between the unified competition law of EC and various intellectual property laws of member states. On the contrary, it's embarrassing that there has yet no specific anti-trust law in China to regulate such abuse of intellectual property right.Therefore, focusing on the analysis of Article 82 of Treaty establishing the European Community (ECT)), this article has made a research through various typical cases on the judicial practice of European Court of Justice in regulating such behavior of abusing dominate position in market by intellectual property owners. And inspired from such research, several proposals were given on formulating China's anti-trust law to regulate the behaviors of abuse of intellectual property right. This article can be divided into four parts, and its main points are as follows:Chapter I is composed of three Sections, during which the conflict between the unified competition law of EC and various intellectual property laws of member states and causations thereof are discussed.There are two Sections in Chapter II. Each section introduced one of the two main IP related competition rules separately----one is"Existence/Exercise Dichotomy"and the other one is"Exhaustion of Rights".Chapter III, made up of three Sections, is core of this article. The first Section focused on the analysis of"four factors"in judging the dominate position under Article 82 of ECT through various cases. Then on the basis of discussion of the recent IMS case, the second Section concerns the"three conditions"of Compulsory Licensing as well as the application of"Doctrine of Essential Facilities"when IP related. Based on the foregoing, the third Section made a further look into the logic behind the option made by the EC between the freedom of competition and protection of intellectual property.Chapter IV, made up of three Sections, is also vital to this article. Different from the three chapters above, this Chapter paid more attentions to our domestic legislation of IP related anti-trust law. Two main suggestions were made----Firstly, the code of anti-trust shall have specific article confirming the application of this code to the behaviors of abuse of intellectual property right; Secondly, based on the root principles of anti-trust law, special regulations or rules shall be made by the anti-trust authority in accordance with the features of IP related competition case.