| In March 2017,the Antimonopoly Committee of the State Council,the Ministry of Commerce,the general Administration of commerce and industry,and the four units of the Intellectual Property Office jointly drafted the Anti-monopoly guide on abusing intellectual property rights(draft proposal)and began to solicit opinions and suggestions from the public.August 1,2015,the State Administration for Industry and Commerce considered the adoption of the "ban on the abuse of intellectual property rights to remove,limit competition" provisions.In the academic research of intellectual property tying in China,the issue of intellectual property tying is paid attention to in the 2000.These materials explain that our government and academia have great deficiencies in understanding and coping with the problem of IPR abuse antitrust regulation,and there is no real laws and regulations to regulate the monopoly of IPR abuse in China.But this also indirectly explains our country to the intellectual property abuse and the intellectual property right tying problem understanding and the research unceasingly deepens and develops.Since the reform and opening up,the economy has been developing rapidly,but with the rapid development of economy,it will bring some other problems,such as the rapid economic development and the relative lag of the legal system conflict.China’s Socialist market economy has been about more than 30 years of history,China’s intellectual property tying is only the beginning of the end of 20 th century,but foreign countries such as the United States,Germany and Britain,such as the old capitalist states are not the same,because of early into the capitalist period,the application of capitalist market economy,They have been exposed to economic problems such as intellectual property tying more time than in our country.and the knowledge and research of intellectual property tying is a century old,therefore,the foreign developed capitalist countries have rich theory and judicial practice on the issue of intellectual property tying,accumulated a lot of legislative and judicial experience,These are excellent wealth for us.Although our country has been developing with the economy,people’s research on the problem of tying the intellectual property right is deepened,the level of research is also improving,but our own understanding is very limited and thereare still many deficiencies,which needs to understand and draw lessons from the foreign advanced legislation and judicial experience,so as to perfect our judicial system.Therefore,the article through the intellectual property right tying problem’s narration and the demonstration,in order to know and understand the advanced legislation and judicial experience abroad,we can find the legal system suitable for our country,then introduce and absorb the foreign advanced system,so that we can better regulate the tying behavior of intellectual property and guarantee the prosperity and stability of the market.This paper mainly uses the methods of comparative analysis,logical analysis,literature research and historical research to prove the tying problem of intellectual property.This article is divided into six parts,the intellectual property tying behavior is fully discussed and its regulation of the legislative construction,roughly as follows:In the second part,this chapter mainly introduces the concept,characteristics,classification and the significance of intellectual property rights antitrust regulation.This chapter first describes the concept of the arrangement of intellectual property rights,and points out that intellectual property tying is a special form of the right person abusing their intellectual property,in order to achieve their own goal,forcing others to buy products while buying another product.Then,the related concepts of intellectual property tying include bundling,exclusive dealing and refusing to trade.Then we also describe the characteristics of intellectual property tying,which is difficult to distinguish,convenient and mandatory characteristics.Finally,the significance of IPR antitrust regulation is discussed.The third part,this chapter mainly to the American knowledge production tying the related legislation to carry on the narration.The regulation of intellectual property tying in the United States has a long history of hundreds of years,it is different from other countries to adopt anti-monopoly method alone,but it adopts the double way of anti-monopoly and preventing patent abuse to regulate the arrangement of intellectual property,which can achieve the effect of regulating intellectual property tying.From the current situation of legislation in the United States,the prevention of intellectual property Abuse and anti-monopoly law contains a series of legal norms regulating intellectual property tying.It includes two categories,one on antitrust legislation,the Sherman Act of 1890,the other on the Clayton Act of 1914,and the other on intellectual property-related legislation,mainlyincluding the patent amendment and the IPR Licensing antitrust guide.Part Ⅳ,this chapter mainly describes the different historical period of the United States judicial practice attitude,each period of intellectual property tying position is different.The United States in the first time to intellectual property rights tying behavior is a legitimate and reasonable use of intellectual property rights,do not think that it is illegal,and then to the classical tying period,the U.S.law enforcement agencies gradually recognized the exclusion of intellectual property tying,limit the harm of competition,and thus adopted its own illegal principle,At that time,people thought that tying behavior was illegal and should regulate the tying behavior of intellectual property,so as to curb its undesirable consequences.Later,with the continuous development of theory and practice,the United States gradually realized that the intellectual property tying not only exists the illegal side,but also exists the legal and reasonable side,can not completely negate and affirm its behavior,should reasonably analyze whether its behavior constitutes illegal,at this time the reasonable principle of the Chicago school time came into being The post-Chicago School and Chicago School are not antagonistic and exclusionary relations,and they do not completely negate the theory of Chicago school,but complement and perfect the contents of Chicago school.The development of theory in different periods in the United States makes its legislative theory and judicial system perfect.Part five,this chapter mainly introduces our country’s legislation insufficiency and the American legislative experience and the judicial practice to our country’s enlightenment.Although the regulation system of intellectual property tying in China has been developing rapidly in recent years,some achievements have been achieved,but in general there are still many deficiencies,which are embodied in two aspects of legislation and judicial practice.At the legislative level: the principle is very strong,increase the operability of legal practice is difficult,not conducive to the implementation of the law,low standard level,authority is not high;In the judicial practice level: the standard of intellectual property tying is different,the judicial procedure is insufficient,and the application principle is vague.Therefore,we should absorb and introduce foreign advanced legislation model and judicial experience,to regulate the arrangement of intellectual property rights,to avoid its undesirable consequences.Part Ⅵ,the conclusion of the article,the content of this article is summarized andsummed up and the future of China’s intellectual property tying regulation prospects. |
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