On The Application Of The Principle Of Forbidding The Abuse Of Rights To Intellectual Property Field

This is the era of knowledge-based economy and economic globalization, in whichthe tremendous power of the intellectual property right to be used as a means of tradecompetition has been witnessed. As a result, our attention on intellectual property has beendrawn away from the “protection” to both “protection” and “abuse”. But so far, lawsgoverning the abuse of intellectual property rights is mainly <Anti-Monopoly Law>, aswell as most of the scholars analyze the abuse of intellectual property rights only on theperspective of anti-monopoly. This recognition has limitations, for adjustment ofAnti-monopoly Law on abuse of intellectual property right is one type but not the only.This thesis attempts to exceed the anti-monopoly law and apply “the principle offorbidding the abuse of rights” to intellectual property field, based on o intellectualproperty right is one type of civil rights, aiming to define the connotation of intellectualproperty abuse and make an analysis of its constitutive requirements, types and legalregulatory approach. Finally, give some advice to improve the law system related.The structure of this thesis is divided into four parts. The first part presents the issueof the abuse of intellectual property right, research significance and research paths.The second part is the basic theory research of the Principle of Forbidding the Abuseof Rights.The third part is justifying the principle of forbidding the abuse of rights applied inintellectual property. I point out that most of the scholars illustrate the abuse of intellectualproperty rights on the antitrust perspective and analyses the limitations of the kinds ofviewpoints. Based on the view that the intellectual property right is one type of civil rights,I consider that the abuse of intellectual property rights shall apply “the principle offorbidding the abuse of rights” to intellectual property field, prove it in a case as well.The fourth part is regulating the abuse of intellectual property right through theprinciple of forbidding the abuse of rights. I mainly introduce the connotation and historyof “the principle of forbidding the abuse of rights”, and argue that the classification ofabsolute rights and relative rights in civil rights has an great influence on thecategorization of abuses of intellectual property rights, followed as three types: first, it is used as an absolute right and aggravates others’ interests.Second, this exercise of intellectual property is to award the relative rights of othersthrough a contract and exert improper influence to the other party. Third, grant the relativerights to the other party through the contract, but do damages to the public interests.Subsequently, to judge whether a behavior is a abuse, I approve the point of“disregard of the purpose of the right to exist". I hold that the social purpose, which allrights have, embodies either others’ interests or social interests and can make a cleardistinction between “legitimate exercise” and “abuse”. If complemented by "faultprinciple" and "damage", civil liability can be totally identified. Appling this principle tointellectual property field, we easily put forward the constitutive requirements, types andregulatory methods of the abuse of intellectual property right.The fifth part is the conclusion. To improve the system of regulating abuses ofintellectual property rights, I have two suggestions: On one hand, put and analyze it under“the principle of forbidding the abuse of right”, additionally proclaim “the principle offorbidding the abuse of rights” in special laws of intellectual property, including forbid theabuses of patent right, copy right, trademark right and right of business secret and so on.On the other hand, promulgate judicial interpretations to confirm constitutive requirementsand different types of abuses of intellectual property rights, regulating them respectively.