Research On The Abuse Of Dominant Position In The Exercise Of Intellectual Property Rights

In the field of antitrust law,a mature analytical framework has been established for the determination of abuse of dominant position.However,when it comes to intellectual property rights,some traditional identification methods seem to be difficult to solve the special problems brought about by intellectual property rights.Firstly,intellectual property often serves as a production factor rather than a terminal product in the market,so an intellectual property right often involves multiple markets.It is not easy to identify and analyze these markets one by one.Secondly,the research and development cost of intellectual property is high,but the cost of replication production is very low.The previous method of relying on production costs to determine product prices is difficult to apply,and some analyses need to be based on clear prices.In addition,intellectual property itself can be infinitely replicated,and in this case,the standard for determining the dominant position of "profitably controlling market production" does not seem suitable for cases related to intellectual property.At present,in order to solve the above problems,the academic community has proposed some new analytical methods,but most of these methods are theoretically correct,but they are difficult to apply in practice.This article advocates relying on traditional analysis methods,delving into the core principles of these analysis methods,and making detailed adjustments and improvements based on the characteristics of intellectual property,to form practical analysis steps for the abuse of dominant position in the exercise of intellectual property.This article,in addition to the introduction and conclusion,is divided into five parts:The first part is the macro issues of antitrust work in the field of intellectual property.Both intellectual property and antitrust laws have a macro value goal of "innovation",but they respectively use limiting competition and maintaining competition as means to achieve value.Therefore,there is a superficial conflict between the two laws,and the standard for resolving the conflict is "which is more conducive to innovation".In addition,intellectual property is not a "legitimate monopoly",and it is subject to the general provisions of antitrust law like other property rights,with only differences in cost structure,product differentiation,and the ability to expand production.The second part is about the definition of relevant markets in the exercise of intellectual property rights.The traditional definition method-the SSNIP method uses price as a variable to define the market scope,but the reasonable price of intellectual property is difficult to estimate,and the differences of intellectual property products are greater than other products.The use of the SSNIP method can easily cause the definition scope to be too narrow.The SSNDQ method is theoretically feasible,but it does not have practical significance.We should focus on defining the core of the method,namely "demand substitutability",reinterpret the SSNIP method,reduce dependence on price,incorporate alternative innovation activities into relevant markets,and make the defining results more accurate.At the same time,it is necessary to introduce the concepts of technology market and innovation market to comprehensively examine the impact of intellectual property monopoly behavior on competition.The third part is about the determination of dominant position in the exercise of intellectual property rights.Firstly,dominance is the position of "profitably reducing production".Secondly,the traditional four element identification method requires examining market share,existing and potential production capacity,and the opposing forces of buyers.But the replication cost of intellectual property is extremely low,leading to competitors being able to expand production almost indefinitely.To better apply traditional methods to determine the dominant position of intellectual property rights,it is necessary to grasp the core of the determination method,which is "whether consumers have other choices".If consumers cannot choose other intellectual property rights,they do not need to strictly apply the four requirements and can directly determine the dominant position of intellectual property rights.The fourth part is about the identification and efficiency exemption of abusive behavior in the exercise of intellectual property rights.Individuals with market dominance who use their dominance to consolidate and strengthen their dominant position and enhance their ability to "profitably raise prices" constitute abusive behavior.The behavior of intellectual property owners obstructing innovation,although not allowing them to "profitably raise prices," can still consolidate and strengthen their dominant position,thus constituting abuse of dominant position.If abusive behavior can bring efficiency,then the behavior can be exempted.Intellectual property rights can bring innovation efficiency to the market,but this efficiency is not brought about by the invention itself,but by the investment of the invention into the market.The fifth part is the regulatory methods for the specific abuse of dominant position in the exercise of intellectual property rights.Firstly,the overpricing behavior of standard essential patents is different from the high prices of other intellectual property rights and cannot meet efficiency exemptions.When examining whether prices are "too high",comparisons should be made based on historical prices.At the same time,it should be noted that discriminatory behavior not only exists in downstream markets,but also among standard contributors.Secondly,compared to traditional refusal transactions,intellectual property rights refusal to license behavior has added "new product" elements.Once again,the act of attaching conditions in a license contract usually constitutes a monopoly by hindering innovation,but innovation efficiency can be improved by increasing the utilization rate of intellectual property,which needs to be analyzed in conjunction with the specific content of the article.