On The Abuse Of Patent Rights And Its Legal Regulation

In the era of knowledge economy, intellectual property increasingly becomes the focus of attention. Yet China’s intellectual property legislation started rather late and showed apparent characteristics of passive legislation. Therefore, the legal regulation which deals with the abuse of intellectual property in China’s intellectual property legal system is relatively missing, and even the regulation and system in the existing laws were not fully applied. The concept of Patent Misuse is used when a patent holder violates a legitimate way to enforce patents using unfair, inappropriate method and damages the benefits of the counterpart, or a patent holder exercises his rights recognized by law in violation of the social and economic purpose of patent being protected by law.If patent abuse is left along without regulation, the goal of promoting technological innovation, technology transfer and diffusion of information with patent system is difficult to achieve, resulting the detriment of a country’s technological progress and economic growth eventually. The abuse of patent performances variedly, but basically can be divided into two categories, ultra vires and restriction of competition. Ultra vires relates to the situation when a patentee enforces patents beyond the scope of rights, while restriction of competition means that, though within the scope of statutory rights, the behavior of enforcing patents unreasonably restricts the competition in the market. Ultra vires is prohibited by civil and commercial law; however restriction of competition is regulated by competition law. Hence in order to effectively regulate patent abuse in China, on one hand terms related to patent misuse shall be added in the further revision of Patent Law, on the other hand, while applying the principle provisions of Anti-Monopoly Law, the competent authorities of antitrust shall formulate specialized administrative regulations according to the specific circumstances in different periods.This paper is divided into four chapters.Chapter two case studies, and our patent lack of reason to abuse of the regulatory system and the second chapter of the compulsory license application in China for analysis; patent abuse and its legal regulation on the basis of the first chapter the basic theoryto sort out; Chapter Ⅲ comparative study of the regulation system of national patent misuse; Chapter, a critical analysis of the current patent abuse of legal regulation system and put forward a sound envisaged.