In the practice of intellectual property rights, obligees often regard some unqualified knowledge technologies as their own intellectual property rights, or raise their existing intellectual property technologies to industry or industry standards, with the intention of monopolizing a certain knowledge technology or establishing a certain technical standard, so as to crowd out competition and form a monopoly. This kind of behavior is like a preset obstacle in related technical fields or related industry markets, so it is classified as a preset obstacle to intellectual property abuse. Specifically, it includes the following disadvantages:
1. Abuse of intellectual property application right
Abuse of the right to apply for intellectual property rights refers to applying for the right to a well-known technology or knowledge design that obviously does not have the conditions for granting intellectual property rights, with the intention of possessing a certain knowledge and technological achievement, so as to monopolize the relevant market or crowd out other competitors. Abuse of monopoly right exists in many fields of knowledge and technology. It attempts to incorporate the known knowledge or technical design belonging to the public domain into its exclusive rights, which violates the basic principles and legislative purposes of the intellectual property system and hinders the dissemination of knowledge and technological progress. Therefore, this behavior should be attributed to the abuse of intellectual property rights. A typical example of this behavior is junk patent application, that is, the content that belongs to the public domain or is not protected by law is included in the scope of patent application, which violates the design purpose of the patent system, does not meet the patent application standards, and belongs to the abuse of patent application rights.
2. Abuse of patented technical standards
Patent technical standards are industrial patent technical matters that are formulated or recognized by relevant competent departments and have a certain mandatory guiding role. Its essence is the expansion of patent in the field of industry or industry standard, which is established as industry standard on the basis of protecting patented technology. When the patented technology rises to the industry standard, the owner of patented technology can gain huge market competitive advantage and economic benefits.
In recent years, China's foreign trade enterprises have been frequently abused by multinational companies' patent technical standards in the international economic field. With the compulsory function of patent technical standards, multinational companies unreasonably restrict China-related products or services from entering its domestic market. As an international industrial trend, the formation of patent technical standards is inevitable. However, in order to maintain their competitive advantage, patent technology owners often unreasonably promote and apply it. In essence, the essence of the abuse of patent technical standards is the abuse of patent rights, and it is the behavior of the obligee to abuse the legal patent monopoly position to seek the illegal monopoly position in the industry market. It should be noted that the key to judge whether the setting of patent technical standards constitutes patent abuse depends on whether this behavior violates the purpose of intellectual property system and forms unreasonable crowding out competition for related industries.
3. In the practice of abusing technology alliance, some enterprises or enterprise groups with patented technology establish technology alliance through agreement or other means to realize technology licensing between themselves or between specific subjects, so as to crowd out other competitors outside the technology alliance. This kind of behavior is called abusing technology alliance. The typical practice of technology alliance is "patent pool" behavior. Enterprises in the technology alliance aggregate their patented technologies into the "patent pool" to realize their priority and priority use, while other enterprises outside the technology alliance must pay high patent fees to use the technologies in the "patent pool". This behavior hinders fair competition in the market and forms an unreasonable industry monopoly.
Second, abuse in market competition.
In the transfer and exchange of knowledge and technology, right holders often refuse to grant intellectual property rights licenses or set unreasonable conditions to crowd out and restrict market competition. These behaviors are closely related to market competition and are classified as the abuse of intellectual property rights in market competition.
1. Denial of license refers to the behavior that the right holder uses his exclusive control over intellectual property rights to refuse to grant the use license to the society or others within a reasonable limit, so as to exclude market competition and realize monopoly operation. This obviously violates the principle of market competition and the purpose and purpose of the intellectual property system itself to encourage scientific and technological innovation, promote knowledge development and the application of new technologies. As far as the right attribute is concerned, the right holder can freely control the intellectual property rights he enjoys according to law, that is, the intellectual property right holder can freely decide whether to permit the use of his own intellectual property rights. However, considering the purpose of intellectual property system to encourage scientific and technological innovation and promote knowledge application, it is necessary to reasonably limit the freedom of intellectual property rights holders.
It should be noted that refusing to issue a license does not necessarily mean "abuse of market dominance". The American Anti-monopoly Guide to Intellectual Property Licensing stipulates that the market power granted by patents and other intellectual property rights to intellectual property owners does not violate the anti-monopoly law itself, and such market power does not necessarily impose the responsibility of licensing intellectual property rights owned by intellectual property owners. Similarly, the EU competition law also holds that refusing permission does not necessarily constitute an abuse of market dominance. Only when the intellectual property rights holders rely on the market monopoly position formed by their intellectual property rights to crowd out competition and seek monopoly can they constitute abuse. Therefore, refusing permission does not necessarily constitute abuse of intellectual property rights.
2. tying behavior tying behavior refers to the sales behavior that the product seller or service provider in the dominant market bundles two or more products. If the buyer wants to buy one of the products, he must also buy other bundled products. The harm of tying behavior is mainly reflected in: on the one hand, it limits the freedom of purchase of buyers or consumers; On the other hand, the competition in the related bundled product market is improperly excluded, which makes the seller unreasonably expand its monopoly advantage to the related bundled product market.
According to EU competition law, the abuse of intellectual property rights is generally related to the dominant position of the relevant market. This paper holds that when judging whether tying behavior constitutes "abuse of intellectual property rights", it is necessary to consider whether the obligee has and uses its dominant market position. If the obligee uses its dominant market position to tie in and crowd out other competitors in the relevant market in order to make high profits or for other purposes, it is actually unreasonably expanding its exclusive rights in the relevant market, which may constitute the abuse of intellectual property rights, because it violates the principle of market competition.
3. Abuse of patent licensing pricing
Abuse of patent licensing pricing mainly includes overpricing behavior, discriminatory pricing behavior, tracking pricing behavior and deferred pricing behavior.
(1) Tracking pricing behavior
Patent license tracking pricing behavior refers to the situation that the patentee requires the licensee to pay the relevant license fees based on its overall production and sales situation. Tracking pricing is essentially a distorted use of patent rights. Unless it is based on the specific circumstances of patent licensing, it is difficult to collect patent licensing fees reasonably without such tracking pricing. If the unified calculation of patent fees is only for the convenience of management, it cannot be considered as abuse of patent licensing pricing.
(2) Discriminatory pricing behavior
Discriminatory pricing behavior of patent license refers to the behavior that the patentee collects patent license fees from different licensees according to different standards and methods to support the price difference behavior without justifiable reasons. The private nature of intellectual property determines that the patent right should belong to the patentee. In other words, the patentee can decide the pricing standard and method by himself when pricing the patent license. However, considering that discriminatory patent licensing pricing behavior has the influence of damaging market transactions and crowding out competition, if there is evidence to prove that this behavior is aimed at restricting licensing and crowding out competition, it is judged as patent licensing pricing abuse. It should be noted that intellectual property rights with discriminatory prices must form a dominant position in the relevant market, that is to say, monopoly and unfair competition can only be formed if there is no substitute for the intellectual property products in the market.
(3) Overpricing behavior
Overpricing of patent license refers to the behavior that the patentee, in order to make high profits, relies on its exclusive control over a patent to price the license beyond market expectations. Intellectual property pricing itself contains incentive factors higher than normal competition. Considering the huge cost and risk in patent development and application, the market allows the patentee not to price according to the marginal cost of patent development. However, if the patent license price is too high, which is beyond the affordability of the licensee, it will affect the popularization and application of patented technology and violate the design purpose of the patent system. Usually, even if the license fee charged by the patentee is too high, it cannot be attributed to the abuse of patent pricing. However, if the court examines the reasonable expectations of the market and thinks that the license pricing is indeed "excessive and unbearable", it may also be considered as abuse. As for the situation that the overpriced patent license is related to the dominant position of the patentee in the market, it is a typical patent abuse.
(4) Deferred pricing behavior Deferred pricing behavior refers to the behavior that the licensee still needs to pay the license fee when implementing the license after the patent protection expires. The patent right has a certain term of protection, and correspondingly, the patent license fee clause should also have a term. If the patentee tries to obtain the patent license fee after the expiration of the patent protection period, this behavior is equivalent to asking the licensee to pay the patentee for the open technology, which violates the patent laws and regulations and should be classified as patent abuse.
It should be noted that if some patents in the package license agreement expire, whether the package license fee should be reduced accordingly is still inconclusive. Compared with patent license, the provisions of trade secret license are different. The owner of a trade secret can continue to get a license fee, even if the trade secret is no longer a secret. Therefore, in the face of the mixed licensing situation of trade secrets and patents, it is necessary to analyze whether the right holder can charge the license fee again after the patent expires.
4. Unreasonable restrictions in the license
(1) Vertical restrictions in the license agreement
Intellectual property licensing exists more among parties that do not compete with each other, that is, most intellectual property licensing agreements are vertical licensing agreements. When the two sides of the intellectual property licensing agreement complement each other vertically, the behavior of restricting competition is more manifested in that the intellectual property right holder uses his knowledge and technical advantages to force the licensee to accept some unreasonable restrictive terms. Vertical restrictions in intellectual property licensing agreements are regulated by the corresponding legal provisions in competition laws of various countries and regions. Among them, the provisions of American antitrust law are the most typical. According to the anti-monopoly law of the United States, vertical restrictions on competition include: (1) tying clauses; (2) repurchase terms, etc. ; (3) Binding license terms; (4) Royalty clauses restricting competition; (5) Terms restricting sales, etc. In addition to being regulated by American anti-monopoly law, the above behavior can also be used as a defense for abuse of intellectual property rights. In essence, the vertical restriction in the license agreement is actually a conditional rejection of the license, but the final result is that the two parties reach a license agreement under unreasonable restrictions, so it should be included in the scope of intellectual property abuse for regulation.
(2) Horizontal restrictions in the license agreement
Horizontal restriction of competition refers to the behavior between two or more actual competitors for the purpose of eliminating or reducing competition and realizing monopoly operation. According to the anti-monopoly law of the United States, horizontal restrictions on competition can be divided into the following situations: (1) fixed-price patent licensing agreement (that is, fixed royalties); (2) Patent licensing agreements that restrict the production of the other party; (3) Patent licensing agreement on market division between the two parties. The collective exemption in the EU's 2004 Technology Transfer Agreement also clearly stipulates that patent agreements concluded between competitors, such as fixing license prices, limiting the output of patented products, and dividing product markets, are not exempt. If a similar patent licensing agreement is reached between several patentees with actual competition, the competition in the relevant product market will be improperly excluded, which should be attributed to the abuse of intellectual property rights.
(3) unreasonable collateral obligation
Unreasonable collateral obligation in intellectual property licensing agreement mainly refers to unreasonable extension of patent monopoly period and patent non-questioning clause.
Extending the patent monopoly time originated from the British patent law, which means that the intellectual property right holder agreed in the license agreement that the licensee should continue to use the intellectual property for compensation after the expiration of its intellectual property protection period. This provision extends the monopoly period of intellectual property rights in disguise, violates the legal provisions of intellectual property rights and blocks the circulation of intellectual property rights to the public domain, which is obviously an abuse of intellectual property rights.
In many patent licensing contracts, the no-objection clause means that the patent holder requires the licensee not to question the validity of a patented technology, and he must pay the patent license fee unconditionally. This clause puts the licensee or transferee in an unfair position. In the face of invalid or expired so-called patented technology, they still need to pay high patent fees or transfer fees, while patent providers do not have to bear any risks, which obviously violates the principle of good faith. The law protects the patentee's right to obtain patent royalties or transfer fees to make up for his economic interests in developing new technologies, and this clause obviously violates this purpose. Therefore, in the patent practice of many countries, unquestionable clauses are included in the scope of patent abuse.
5. Exclusive rebate Exclusive rebate is a common restrictive clause in patent licensing contracts, which is embodied in the act of requiring the licensee to transfer all or part of its improvement or innovation of patented technology to the patentee or its designated object through agreements and other forms. This restriction unreasonably expands the scope of patent rights, greatly weakens the licensee's enthusiasm for patent technology re-innovation, and is not conducive to technological innovation and knowledge innovation. At present, many countries have brought it into the category of intellectual property abuse to regulate it. For example, the EU Competition Law lists it as a "blacklist" and a "exclusionary restrictive clause".
It should be noted that not all intellectual property rights will constitute abuse of intellectual property rights. Feedback within a certain limit is sometimes beneficial. It can directly transfer improved or innovative technologies to relevant technology users, thus promoting and expanding the popularization and application of new technologies and improving the utilization efficiency of high and new technologies. However, the exclusive rebate has the color of expanding monopoly and restricting competition, so it is listed as the scope of intellectual property abuse under certain circumstances. To sum up, to judge whether the rebate clause belongs to the abuse of intellectual property rights, we should start with whether the patent forms a dominant position in the market and investigate the influence of the rebate clause on hindering fair competition and forming industry monopoly.
6. Exclusive transaction According to the relevant provisions of the US Anti-monopoly Guide on intellectual property licensing, exclusive transaction can be defined as: it is stipulated in the intellectual property licensing agreement that the licensee shall not license, sell, spread or use other technologies that compete with the licensed technology. The license agreement does not stipulate that the licensee shall not engage in business that competes with the licensed technology, which will constitute the abuse of intellectual property rights. When judging whether an exclusive transaction is formed, the following factors should be considered: (1) Whether this provision is conducive to the implementation and improvement of the licensed patented technology; (2) whether this provision will hinder the implementation and improvement of other technologies that are competitive with the patented technology, or have the effect of restricting competition.
The license agreement may involve exclusive transactions, including: in the first case, the licensor may agree on one or more exclusive licenses to restrict the licensee from sublicensing others; In the second case, it is stipulated that only the licensee can use the technology, or the licensee cannot use related technologies that compete with the technology. Generally speaking, if several licensees or licensors are in a vertical relationship with licensees, exclusive licensing may lead to anti-competitive problems. A typical case is that the parties occupying all market power conclude cross-licensing agreements, or use rebate clauses to obtain intellectual property rights.