Defects of the draft anti-monopoly law in the abuse of intellectual property rights
A good law should not only learn from the mature experience of foreign countries, but also combine with the reality of our country, and not neglect one aspect. For example, the abuse of intellectual property rights and the formation of a monopoly related to intellectual property rights should be stipulated in the general provisions or chapter of the Anti-Monopoly Law enacted this time in China. However, the draft anti-monopoly law of April 8, 2005 only stipulates in Article 56 of the Supplementary Provisions of Chapter 8: "This law does not apply to the legitimate acts of business operators in exercising their rights in accordance with the provisions of the Patent Law, Trademark Law and Copyright Law; However, if the abuse of intellectual property rights violates the provisions of this law, it shall be dealt with in accordance with this law. " Such a simple and vague provision is not commensurate with the harm of monopoly caused by abuse of intellectual property rights, and it is also far from the expectations of the industry for this anti-monopoly legislation. Most importantly, after the promulgation of the Anti-Monopoly Law, it seems that when the State Council or relevant departments formulate relevant laws and regulations according to this law, the basis is insufficient. Besides, after a law is promulgated, it cannot be changed overnight, which involves the seriousness of the law. Judging from the current social development trend, the form of market monopoly is becoming more and more advanced, and the international market monopoly formed by using intellectual property rights will be the main form in the future. This form has the characteristics of surface legalization and invisibility, but it is more harmful and has far-reaching influence. Therefore, we should take this anti-monopoly legislation as an opportunity to regulate this form of monopoly and escort the healthy development of China's foreign trade and market economy.
Abuse of intellectual property rights is harmful.
The ultimate goal of intellectual property protection and anti-monopoly law is to increase social wealth, and they are both opposite and unified. Deng Jun, director of the National Intellectual Property Development Research Center, believes that intellectual property is a policy tool to adjust the interests of all parties in knowledge creation and application; Intellectual property is a tool of market competition; The protection of intellectual property rights should be compatible with a country's economic development level. Internationally, western developed countries often use their patents to restrict developing countries in trade, which is a national intellectual property strategy and an integral part of a national economic security strategy. China should also attach great importance to this. At home, while attaching great importance to intellectual property protection, we should also prevent multinational corporations and domestic enterprises from abusing intellectual property market monopoly. Therefore, the protection of intellectual property rights should be determined within a reasonable range, and when the abuse of intellectual property rights forms a market monopoly, the anti-monopoly law should restrict it.
The market monopoly formed by the abuse of intellectual property rights has become an important factor or even a key factor of monopoly in the era of knowledge economy. Monopoly related to intellectual property rights is mainly manifested in the abuse of market dominance by using intellectual property rights. At present, the development trend of one of the most serious forms of monopoly related to the abuse of intellectual property rights in the world is: technology patenting, patent standardization and standard market monopolization. For example, foreign DVD manufacturers unite, tie patents together, form a patent pool, and then form standards. DVD manufacturers in China have to pay royalties if they use this standard to produce. For a DVD, China manufacturers can only earn 1 USD when they pay $20 abroad, which is the harm of market monopoly formed by patents. You can't do it without using its standard, because this standard has formed a market monopoly. Monopoly related to the abuse of intellectual property rights is embodied in the restrictive competition behavior related to intellectual property rights: for example, the right holder refuses to license others to use his patent, thus preventing other operators from entering the market of his products or services to compete with them; The result of the obligee's purpose or behavior is to hinder the competition in adjacent markets and protect the interests of its stakeholders; The patentee controls the resale price of the patented product; The patentee is forced to tie in other products when selling patented products; The patentee sets an exclusive feedback clause, that is, it stipulates that the licensee can only grant any improved trade secret technology or other exclusive technology to the licensor, thereby depriving the licensee of the right to transfer the new technology to a third party; The patentee uses the obtained patent to formulate technical standards, and controls the technical standards by charging high patent fees, thus controlling the market of a product; The patentee controls the technology market by controlling the source of technology; The patentee controls the product market by means of price discrimination. To judge whether the behavior related to intellectual property rights constitutes a monopoly, we should follow the following three criteria: First, the anti-monopoly law generally does not apply to the field of intellectual property rights, as long as the exercise of intellectual property rights is not beyond the scope of the right itself, even if there is monopoly or competition restriction, it should be tolerated by the anti-monopoly law; Second, if the exercise of intellectual property rights has exceeded the scope of their own intellectual property rights and restricted market competition, then this behavior should be regulated by the anti-monopoly law; Third, even if the act of exercising intellectual property rights is not beyond the scope of the right itself, if this act can bring undue restrictions to market competition, then the anti-monopoly law should also be applied to this act.
The necessity of anti-monopoly law to regulate the abuse of intellectual property rights
China has established a relatively complete intellectual property system since 1990, which is only 15 years. In the meantime, it is necessary to emphasize the protection of intellectual property rights. However, according to the situation that some large foreign companies monopolize China's international and domestic markets by using intellectual property rights, they only emphasize the exercise of rights without establishing corresponding restraint mechanisms, which leads to market monopoly and should arouse our high vigilance. Among them, the formulation of anti-monopoly law is a very important aspect to curb the abuse of intellectual property rights. However, in China, it seems that the complex relationship between intellectual property rights and anti-monopoly law has not attracted enough attention. At present, the anti-monopoly law generally does not mention the anti-monopoly problem in the field of intellectual property rights, but only regards intellectual property rights as the application of anti-monopoly law in general. Books on intellectual property rarely mention anti-monopoly law, but often only refer to intellectual property monopoly in general; In legislation, it has not attracted the attention of relevant departments. For example, the provisions on the abuse of intellectual property rights in the draft Anti-monopoly Law of China can be seen in the position of the whole anti-monopoly law. However, many countries have enacted a lot of relevant legislation to regulate the market monopoly formed by the abuse of intellectual property rights. For example, 1999, Microsoft in the United States bundled WINDOWS by selling Windows operating system, and the European Union fined Microsoft $2 billion according to its relevant anti-monopoly law. At present, many multinational companies in China have many similar behaviors, but if there is no law to restrict them in China, how can they be punished? This is a problem that we should consider. In fact, in today's fierce international scientific and economic competition, the monopolistic behavior of many large foreign enterprises in the China market is inseparable from the improper exercise of intellectual property rights. Therefore, the establishment of an anti-monopoly legal system related to intellectual property rights is of great significance for safeguarding China's healthy development and economic security. As some experts have analyzed: "Compared with the provisions on strengthening intellectual property protection in the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), there are still many gaps in China's intellectual property laws; Compared with the provisions on controlling and restricting competition in TRIPS Agreement, there are also gaps in China's laws and regulations. The difference between these two gaps lies in: for the former gap, if we don't make efforts to make up for it, it will lead to accusations from developed countries, which may lead to disputes and retaliation; For the latter gap, even if we have not formulated relevant laws and regulations, foreigners will not have any opinions. For example, in the intellectual property negotiations between China and the US government, the United States never accused China of not conducting anti-monopoly control; The State Council Legislative Affairs Office invited legal experts from Europe and America to hold a seminar this time, but they didn't put forward opinions and suggestions in this respect, because it was not good for them. 2004 is the third anniversary of China's accession to the WTO. Many countries have evaluated China's commitment to the WTO, such as the Trade and Industry Committee of the British Parliament, the Office of the United States Trade Representative and the Canadian International Trade Commission. It is generally believed that China's intellectual property legislation is basically consistent with the relevant WTO agreements, but there are considerable problems in intellectual property protection. First of all, the punishment for infringement is not enough, and the central and local governments have failed to implement the law. The judicial and administrative law enforcement departments are inefficient in law enforcement. Faced with these accusations, the author believes that China has made great efforts in intellectual property protection and achieved remarkable results. A few developed countries take advantage of owning the vast majority of intellectual property rights in the world and often impose import restrictions or "unfair trade" on patented products, products with legal trademarks, books, records, copyrighted computer software and other goods containing intellectual property rights in the name of protecting intellectual property rights. Shouldn't this abuse of intellectual property be regulated? The protection of intellectual property rights and the regulation of intellectual property abuse should always be two aspects of the same problem, which are the unity of opposites. The ultimate goal of both is to increase social wealth. Developed countries regard intellectual property rights as a tool for trade protection and trade sanctions, and developing countries should also regulate them reversely. For example, the substantive differences between developed and developing countries in amending the Agreement on Trade-related Aspects of Intellectual Property Rights are the embodiment of this struggle. Therefore, whether in order to maintain the domestic free and fair competition order or to safeguard China's economic interests in international economic exchanges, more detailed anti-monopoly legal norms related to intellectual property rights should be stipulated when formulating the Anti-monopoly Law.
Legislative thinking on regulating the abuse of intellectual property rights
There are differences in the legislation of intellectual property-related monopoly forms in different countries: Japan adopts an open style and lists restrictive clauses that should be controlled in intellectual property contracts, such as Article 6 of the Anti-Monopoly Law; Although there is no special regulation in the United States, the Guiding Opinions on Anti-monopoly Law of Intellectual Property Licensing issued by the US Department of Justice and the US Federal Trade Commission in 1995 lists the general standards for law enforcement agencies to investigate anti-competitive behaviors; No.240 1996 issued by the European sports commission uniformly stipulates the use of patented technical secrets, which can be divided into exemption and non-exemption; There is no uniform law on the regulation of intellectual property abuse in China, which is scattered in the Patent Law, Contract Law and Anti-Unfair Competition Law. Therefore, when formulating the Anti-monopoly Law in China, we should sort out the existing provisions and systematically and accurately express the overall position of the Anti-monopoly Law on the abuse of intellectual property rights.
After formulating a unified anti-monopoly law, countries have also formed some highly operational special norms in specific administrative law enforcement and judicial practice. For example, on April 6th, 1995, the U.S. Department of Justice and the U.S. Federal Trade Commission jointly issued an anti-monopoly guide on intellectual property licensing; 1996 65438+1October 3 1 day, the European Commission also formulated Regulation No.240 on the application of Article 85 (3) of the Treaty of Rome to certain types of technology transfer agreements (EC No.240/96, commonly known as "Technology Transfer Regulation"); 1On July 30th, 999, Japan Fair Trade Commission re-promulgated the Guiding Principles of Anti-monopoly Law in Patent and Technical Secret Licensing Contracts; The Fair Trade Commission of "Executive Yuan" in Taiwan Province Province, China also issued the "Principles for Trial of Technology Authorization Agreement Cases" on 2001kloc-0/65438+8. After the enactment of China's Anti-Monopoly Law, the State Council and its relevant departments should also formulate administrative regulations, departmental rules and implementation rules, and make detailed provisions on the specific manifestations, law enforcement agencies and legal responsibilities of intellectual property-related monopoly, so as to truly implement the provisions of this law.