| Sovereign patent fund is a patent operating fund set up by the government to guide investment in specific industries.Due to the government background of sovereign patent fund and its strong fund guarantee ability,its competitiveness is beyond the reach of ordinary enterprises.With the increase in the number and scale of sovereign patent funds,they are reducing market entry barriers for domestic enterprises,improving international competitiveness,and supporting the development of related industries.The anti-competitive effect of sovereign patent is also gradually emerging.Sovereign patent funds subsidize domestic companies by granting or transferring patents for free or at low prices,which will hinder fair competition in the market,use their patents to create market entry barriers to exclude competition,can limit the competition through its powerful patent aggregation ability.The existing rules are insufficient to regulate the anti-competitive effect of sovereign patent funds,SCM Agreement only stipulates in principle that financial aid provided by the government or public institutions is a subsidy,but in judicial practice,different opinions are adopted to reach different conclusions on public institutions,financial aid has no clear criteria,whether sovereign patent fund’s act as government subsidies is debatable.The threshold of technical barriers to trade set by multilateral rules is too low,which provides a legal way for sovereign patent funds to incorporate patents into technical regulations to form market entry barriers.The level of anti-competition regulation on intellectual property is uneven and lags behind.The barriers to market entry created by patents not included in technical regulations pose challenges to the traditional monopoly control system.Monopoly agreements and abuse of dominant market position lack consideration for anti-competition regulation of intellectual property rights.As a means of prevention and control in advance,the centralized examination system of business operators has limitations in the circumstances and considerations of the centralized examination of related intellectual property rights.Regulating the anti-competitive effect of sovereign patent funds can be carried out from three aspects: First,from the region to the multilateral,promote the establishment of sovereign patent fund regulatory rules.In terms of entity rules,limit the proportion of government ownership,stipulate the duration of life,and establish market-oriented transition period;In terms of procedural rules,a mandatory information disclosure system should be established to enhance the transparency of sovereign patent funds.China,Japan and South Korea are the founding countries of the sovereign patent funds and important trading partners in the region.China should take the FTA negotiations as an opportunity to increase negotiations on the regulation of sovereign patent funds on the basis of adhering to the principle of effective market and effective government.Second,improve existing rules.On the one hand,we should raise the threshold for multilateral rules to set technology trade barriers,On the other hand,improve the anti-competition regulation on intellectual property rights by anti-monopoly law of various countries.On the basis of the existing system of concentration of business operators and the system framework of monopoly control,we should give full consideration to the characteristics of intellectual property rights,improve the examination situation,examination standards and relief measures of concentration of business operators related to intellectual property rights,and refines the analysis principles and thoughts of monopoly agreements and abuse of dominant market position of intellectual property rights.As a big country in intellectual property rights,China should promote the introduction of anti-monopoly guidelines on abuse of intellectual property rights as soon as possible.Third,increase enforcement of existing rules.All countries should make full use of existing rules to strengthen anti-competition law enforcement on intellectual property rights and inter-state law enforcement cooperation.China should,on the basis of the existing rules,standardize the law enforcement procedures after the unification of law enforcement agencies,unify the law enforcement measures,and strengthen law enforcement and case handling. |
