Patent Misuse Prohibition Principle And Its Application

The principle of prohibiting patent abuse is the regulation of patent abuse which prohibits the patentee implementing his patent right when he abuses his patent right. For a long time, the system of patent abuse has always been seen as an equalization system which is created by the court to prevent unfair behaviors. In recent years, the patent abuse and the principle of prohibiting patent abuse which are both included in the system of patent abuse have been used by an increasing number of countries, and have also been included in many corresponding legal provisions of lots of countries.The patent abuse and the principle of prohibiting patent abuse have already attracted the attention of theoretical and practical circles. Besides, they're involved in both theoretical research and practical operation, and in a progressive development and depth.This paper starts from the significance of researching this system and its application, after analyzing the right abuse, we give the definition, elements and forms of patent abuse with the US cases. On the basis of analyzing the origin and development of patent abuse, we also give the differences between patent abuse behaviors and the behaviors that breach the Anti-Monopoly Law.The principle of prohibiting patent abuse is the development of patent abuse, and the defendant can use this principle as his or her defenses, so that they can protect their own legitimate rights. It is no doubt that its applications are far more than this, after analyzing three typical cases, we offer at least two other applications: as the basis of filing antitrust lawsuits and as the basis of both patent negotiations and patent licensing.Chinese Anti-Monopoly Law has already been promulgated and will soon come into force, it will undoubtedly play a very important role in regulating patent abuse, it is also the reflection of the principle of prohibiting patent abuse, so during analyzing the cases, we also give how to utilize this law into regulating the patent abuse behaviors. Right abuse will not inevitable break the anti-monopoly, but once anti-monopoly law is violated, there must be abuse of patent right. Intellectual property rights are some kind of legal monopoly, while the basic function of anti-monopoly law is to protect free and fair competition. Both patent law and anti-monopoly law share the same objective of promoting the innovation and encouraging the competition. The difference between them is that patent law is the first constrain or the interior constrain whereas anti-trust law is the second constrain or the exterior constrain.The third amending of patent law has already been carried out with great fanfare, and it's believed that there will be more relevant laws concerning patent abuse and the principle of prohibiting patent abuse, under such circumstances the principle of prohibiting patent abuse will be utilized in more and more cases especially patent cases. Against this background, the writer gives his own legislative proposals.