This can’t help but remind people of the Microsoft monopoly case in the United States. For several years, this case has not been clearly resolved, which reflects the contradiction and trade-off between the US government's two value interests of protecting intellectual property rights and protecting fair competition and antitrust. At the beginning, the Microsoft monopoly case also attracted widespread attention from all walks of life in our country. In the context of publicity at that time to increase the protection of intellectual property rights, this case was the first time that it spread the concept of anti-monopoly to the Chinese people in a relatively influential way, popularized the knowledge of anti-monopoly law, and made people begin to realize : It turns out that the stronger the protection of intellectual property rights, the better. There must also be a reasonable limit to the protection of intellectual property rights. Intellectual property rights cannot of course be regarded as exceptions to antitrust laws under any circumstances.
Tracing the history of the formation of intellectual property rights, we can see that its predecessor was an 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 exclusive monopoly right granted by law to the right holder on a specific object, and the right holder can exclusively enjoy it within the scope of legal authorization. , exercise its intellectual property rights. Therefore, intellectual property rights generally exist as exceptions to the application of antitrust laws; their “monopoly nature is itself the product of a compromise between stimulating scientific and technological progress, encouraging scientific and technological innovation, and monopolizing intellectual achievements.” [①] In the context of today's knowledge economy, with the rapid production, dissemination and use of high and new technologies, the integration and globalization of science and technology and economy are getting higher and higher. The continuous strengthening of this trend, on the one hand, makes social progress faster and faster, on the other hand, it also makes the infringement of intellectual property rights more and more diversified and large-scale. This will inevitably require 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. Based on this, it is not difficult to understand why countries around the world, including my country, have chosen to continuously strengthen the protection of intellectual property rights.
However, it is said that when things go to extremes, they must be reversed, and the truth may become a fallacy if it takes one step forward, let alone intellectual property protection, which itself has negative factors. Legal design has a double-edged nature, which is especially obvious in the protection of intellectual property rights. The inherent contradiction between private exclusivity and social utilization in intellectual property protection itself will become more prominent as intellectual property protection continues to be strengthened. If intellectual property rights excessively strengthen the protection of the legal rights of right holders, it will have a negative impact on other people's technological innovation and a fair competition environment in society, and even hinder economic development. If the unique legal exclusive monopoly rights of intellectual property are abused, they will no longer be legal and no longer meet the original meaning of the design of the intellectual property system. Leaving aside the actual state, from the perspective of the supposed state, the original intention of the intellectual property system is to promote competition; its profit-driven mechanism can encourage enterprises to engage in research and development activities, thus becoming a driving force for development and innovation and economic development. force. Reality has proved that intellectual property rights can be regarded as a weapon for market competition.
But it is worth noting that “the function of competition is to encourage competitors to run faster, but the winner of the competition will be far ahead, thereby gaining the position to control the market, destroying competition and becoming the most dangerous competitor. "[②] Because competition usually leads to the concentration of capital, this concentration can bring a certain degree of prosperity and vitality to the market, thus promoting the development of the entire economy. However, when this concentration and scale exceed a certain limit, In this process, there will be a tendency to restrict and exclude market competition: that is, in order to avoid the risks and pressures of competition, market entities that have gained a dominant position in competition abuse their advantages, artificially distort the market competition mechanism, and undermine freedom. Fair market competition order. In order to maintain fairness and efficiency, promote competition and innovation, and safeguard consumer interests, modern antitrust law was born. The legal monopoly rights retained by intellectual property rights as exceptions to the application of antitrust laws do not mean that any behavior in the field of intellectual property rights is exempt from the application of antitrust laws. Once the behavior constitutes the abuse of intellectual property rights and causes substantial restrictions on market competition, the antitrust law should be applied. Therefore, intellectual property rights and antitrust can be said to be separated by a thin line and live side by side. If both parties reasonably apply their rights, they should be in peace, and they can even work together to promote economic and social development.
But when rights are abused, that is, when a line is crossed, the situation is very 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 and scale. The anti-monopoly law regulates them, which makes some people infer that the protection of intellectual property rights It is incompatible with anti-monopoly. The implementation of anti-monopoly law will affect the growth of the economic "aircraft carrier". Not really. The law will of course protect the dominant market position obtained through legitimate competition and the monopoly within a moderate scope obtained in accordance with intellectual property laws. Only when some large enterprises abuse this monopoly or position to conduct illegal substantive restrictions and harm competition will the antitrust law regulate this behavior. That is to say, “What the antitrust law opposes is not large enterprises in the general sense, but any attempt to monopolize the market; what it strives to eliminate is not simple corporate advantages, but the distortion and ravage of the competition mechanism with the help of such advantages; what it strives to do is to What is restricted is not the market dominance and high profits obtained by enterprises through legitimate business practices such as advanced technology and excellent strategies, but the illegal use of such products for the purpose of reducing competitive pressure and easily obtaining profits in the long term. Maintenance and abuse of status; what it protects is not the weakness of weak small businesses, but protecting them from obtaining an equal development status." [③] In other words, the regulation of the Anti-Monopoly Law is “not specific to the person” in a sense. The purpose of legal regulation of the abuse of intellectual property rights for monopolization is to ensure that fair and normal competition is not artificially distorted. Illegal restrictions should ensure the balance of the rights and obligations of relevant entities, maintain the vitality of innovation, freedom of competition, the interests of consumers and the normal and orderly development of the economy.
Related to my country’s intellectual property system and related anti-monopoly regulations, the former has only been established for more than ten years and is in the process of continuous development and improvement; while the latter has not really started yet. , there is no complete and systematic law, let alone a specialized antitrust law related to intellectual property rights. There are only some sporadic regulations in relevant regulations such as the Contract Law and the Anti-Unfair Competition Law.
In recent years, my country’s external development has continued to expand 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 country has increasingly emphasized the strict protection and application of intellectual property rights, and has also Many achievements have been made. But what cannot be ignored is that while foreign advanced technologies and large amounts of capital have entered the Chinese market to drive social and economic development, it is also relatively easy for some multinational companies with these resources to gain a dominant position in my country's relevant markets. When they abuse their dominant market position to restrict or exclude reasonable competition, the impact and adverse effects on my country's competitive order and national economic development will also be huge. What is regrettable is that our country cannot regulate this according to law to protect its own interests, just because we have no legal system related to this. Therefore, on the one hand, domestic enterprises are restricted by the laws of other countries in the international market; on the other hand, we are unable to regulate the monopolistic behavior of foreign enterprises and multinational companies. In this regard, in addition to fundamentally establishing a more complete intellectual property system, we should also promptly establish a legal system that coordinates with it, such as antitrust laws, to safeguard our rights and interests to the maximum extent.