Tracing back to the history of the formation of intellectual property, we can know that its predecessor was the exclusive monopoly granted by the royal family in feudal society. In the process of promoting scientific and technological progress, economic prosperity and social development in modern society, this privilege has gradually evolved into a legal monopoly right given by law to the right holder for specific objects, and the right holder can exclusively enjoy and exercise his intellectual property rights within the scope authorized by law. Therefore, intellectual property rights usually exist as an exception to the application of anti-monopoly law; Its "monopoly itself is the product of a compromise between stimulating scientific and technological progress, encouraging scientific and technological innovation and monopolizing intellectual achievements". [1] Under the background of today's knowledge economy, with the rapid production, dissemination and use of high and new technologies, the degree of integration and globalization of science and technology and economy is getting higher and higher. The continuous strengthening of this trend, on the one hand, makes social progress faster and faster, on the other hand, makes the infringement of intellectual property rights more diversified and large-scale. This inevitably requires strengthening the protection of intellectual property rights more effectively: adjusting the scope and duration of protection, improving the level of protection and increasing the intensity of protection. Accordingly, it is not difficult to understand why all countries in the world, including China, have chosen to strengthen intellectual property protection.
However, as the saying goes, any step forward of truth may become fallacy, not to mention the protection of intellectual property rights with negative factors. Legal design has a double-edged nature, which is particularly obvious in the protection of intellectual property rights. The inherent contradiction between private monopoly and social utilization in intellectual property protection itself will become more prominent while continuously strengthening intellectual property protection. If intellectual property rights excessively strengthen the protection of the legitimate rights of the obligee, it will have a negative impact on the technological innovation of others and the fair competition environment of society, and even hinder economic development. If the unique legal monopoly right of intellectual property is abused, it will no longer be legitimate and does not conform to the original meaning of intellectual property system design. Regardless of the actual state, the original intention of intellectual property system design is to promote competition from the perspective of due state; Its benefit-driven mechanism can encourage enterprises to engage in research and development activities, thus becoming the driving force for development and innovation and promoting economic development. Reality has proved that intellectual property rights can be regarded as a sharp weapon in market competition.
However, it is worth noting that "the role of competition is to encourage competitors to run faster, but the winner of competition will be far ahead, thus gaining the position of controlling the market, undermining competition and becoming the most dangerous enemy of competition." [2] Because competition usually tends to concentrate capital, this concentration can bring a certain degree of prosperity and vitality to the market, thus promoting the development of the whole economy. However, when this concentration and scale exceed a certain limit, there will be a tendency to restrict and exclude market competition in this process: that is, in order to avoid the risks and pressures of competition, market players who have achieved competitive advantage abuse their advantages, artificially distort the market competition mechanism and undermine the free and fair market competition order. In order to maintain fairness and efficiency, promote competition and innovation, and safeguard the interests of consumers, modern anti-monopoly law came into being. As an exception to the application of anti-monopoly law, the legal monopoly right of intellectual property rights does not mean that any behavior made in the field of intellectual property rights can be exempted from the application of anti-monopoly law. Once the behavior constitutes the abuse of intellectual property rights and causes substantial restrictions on market competition, the anti-monopoly law should be applied. Therefore, intellectual property rights and anti-monopoly can be said to be separated by a thin line and live next to each other. If both sides use their rights reasonably, they should live in peace and even work together to promote economic and social development. But when the right is abused, that is, crossing the border, the situation is completely different.
In practice, those who abuse their rights to monopolize the market in the name of intellectual property rights are usually large enterprises with considerable strength. The regulation of anti-monopoly law makes some people infer that the protection of intellectual property rights and anti-monopoly are incompatible, and the implementation of anti-monopoly law will affect the growth of economic "aircraft carrier" Actually, it is not. Of course, the law protects the dominant market position obtained through legal competition and the monopoly within a moderate range obtained according to the intellectual property law. Only when some large enterprises abuse this monopoly or position, make illegal and substantial restrictions and damage competition, will the anti-monopoly law regulate this behavior. That is, "the anti-monopoly law is not aimed at large enterprises in the general sense, but at any attempt to monopolize the market;" What it strives to eliminate is not the simple enterprise advantage, but the distortion and ravage of the competition mechanism by virtue of this advantage; What it restricts is not the dominant market position and high profits obtained by enterprises through legitimate business activities such as advanced technology and excellent strategy, but the long-term goal of reducing competitive pressure and making profits easily is to maintain and abuse this position in an improper way; It protects not the weakness of small and weak enterprises, but their equal development status. [3] That is to say, the regulation of anti-monopoly law is "about things rather than people" in a certain sense. The purpose of its legal regulation of monopolistic abuse of intellectual property rights is to ensure that legal and normal competition is not subject to artificial and illegal restrictions, to ensure the balance of rights and obligations of relevant subjects, to safeguard the positive innovation and freedom of competition, and to safeguard the interests of consumers and the normal and orderly development of the economy.
Connecting with China's intellectual property system and related anti-monopoly laws and regulations, the former has been established for more than ten years and is in the process of continuous development and improvement; The latter has not really started, there is no complete and systematic law, and there is no special anti-monopoly law related to intellectual property rights, but there are some sporadic norms in relevant laws and regulations such as contract law and anti-unfair competition law.
In recent years, China's foreign development has been expanding and it has joined the World Trade Organization. In order to improve the investment environment and meet the needs of its own economic development, the state has increasingly emphasized the strict protection and application of intellectual property rights, and has also made many achievements. However, it should not be overlooked that while foreign advanced technology and a large amount of capital enter the China market to promote social and economic development, some multinational companies with these resources are relatively easy to gain a dominant position in the relevant markets in China. When they abuse their dominant market position to restrict or exclude reasonable competition, the impact and adverse impact on China's competition order and national economic development are also considerable. Unfortunately, our country can't regulate it according to law to safeguard its own interests, just because the teacher is unknown: we don't have a legal system related to it. Therefore, on the one hand, domestic enterprises are restricted by the laws of other countries in the international market, on the other hand, we can't regulate the monopoly behavior of foreign enterprises and multinational companies. In this regard, in addition to fundamentally establishing a more perfect intellectual property system, we should also establish a supporting legal system in time, such as anti-monopoly law, to protect our rights and interests to the maximum extent.