The Research On Regulating Patent Abusing By Anti-monopoly Law

Compared with any other economy driving force in the past, very big change has been happened in the economy strength structuring in our daily life now. The war of competitiveness for the control of markets and raw materials has turned into a scramble for the exclusive ownership of new ideas and inventions. As a war of weapons, patent play an increasingly important role, it can be said, who has known a patent well, who has captured a marketplace right away very likely. The enticement makes the patentee easy to abuse his rights, the patent abusing and the dispute increase by gradually, it's necessary to know how to comprehend completely patent abusing and resolving patent abusing problems.From the essence of patent right, it is a legal monopoly to the statutory period to achieve a monopoly on a particular technology. But the patent on such a statutory right to the monopoly is different from anti-monopoly law, the law the patentee's monopoly right to a certain period of time are in order to motivate their continued innovation, and aims to take benefit from the society, while the anti-monopoly law in the monopolistic behavior disturbed the market order, to others and social benefits of damage, this is the essential difference between them. Legal protect patent right ,however, patent abusing makes the reasonable right to unreason, it's need to forbid it strictly. Although the patent abusing comes from case law but not from the theory of civil law, its relationship with the right abusing of civil law is closed. The principle of forbidding right abusing of civil law is general direction, the principle of forbidding patent abusing is the concretization being that civil law. The major types of patent abusing are tying, non-implement patent, refuse permitting, general permitting, slinging mud at his opponent through a warning letter or lawsuit and so on. Patent abusing can be regulated by Civil law, Patent law and Anti-monopoly Law, the Anti-monopoly law will be an effective way, when the results are coincident between patent misusing and monopoly. Many countries adopt it as one form of regulations, such as the United States, the European Union, Japan and other countries. Patent misuse does not equal to monopoly, monopoly is only part of the consequences of abuse, anti-monopoly regulation of patent abusing is the use of patents to control and monopolize the market, and the abuse of this advantage and undermine free and fair competition order. From anti-monopoly law to uphold the freedom of fair competition in the market point of view, using public means of effectively balance the relationship between exercise of reasonable patent right and the freedom competition.To restrict monopolize problem by patent abusing , first of all, we need to keep a foothold in current legislation situation , fully utilize the present relevance law, secondly use for reference the abroad experience and method, to improves and perfects to our law. Have put before long into practice " Anti-monopoly law of the People's Republic of China ", have stipulated the problem to apply to the intellectual property rights of patent right in this law, but its regulation too briefly, The anti-monopoly law of European Union, the United States and Japan, regulate the intellectual property rights abusing problems in principle, but in these countries, they through the enactment of "Guidelines" to refine the exercise of intellectual property rights abusing, in order to implementation better, it is bound to introduce the corresponding "rules" to guide judicial enforcement. I will discuss the problem in this law, point out the deficiency place of patent abusing exists problem, it's hope that anti-monopoly law can protect patent right better, at the same time, also can restrain effectively the patent abusing.In this article, I need to analyzing of the relationship between patent abusing and monopoly, studying the concept and manifestation of the patent abusing, the patent abusing bringing about monopoly and their law gauge system. Priority and difficult point studying are how to judge the patent abusing concept and the standard of monopoly bringing by patent abusing , because the academic does not have a unified point of view, so in determining the existence of certain differences. Study the monopoly bringing buy patent abusing, trying to sort out the relationship between patent abusing and monopoly and refining the problem of patent abusing, in order to know the patent right under anti-monopoly law more well.