The abuse of intellectual property rights after th

2022-08-01
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Abuse of intellectual property after the introduction of the anti-monopoly law

does owning intellectual property mean monopoly? Does the introduction of the anti-monopoly law mean the squeeze and restriction of intellectual property rights? After more than ten years of trial and error, the anti-monopoly law of the people's Republic of China was finally published in August this year. These questions have attracted attention again

throughout China's anti-monopoly law, only Article 55 directly reflects the words of intellectual property, that is, "this law is not applicable to the acts of operators exercising intellectual property in accordance with the laws and administrative regulations on intellectual property; however, this law is applicable to the acts of operators abusing intellectual property to eliminate or restrict competition." This article is sufficient to answer the question raised above, that is, the ownership of intellectual property by the intellectual property right holder as an operator does not mean monopoly, nor does the exercise of intellectual property rights according to law constitute monopoly, but the abuse of intellectual property rights will be subject to the regulatory cavity and core size of the anti-monopoly law

in combination with the provisions of China's anti-monopoly law on relevant market and market dominant position, it can be concluded that the relationship between intellectual property rights and one of monopoly behaviors - the abuse of market dominant position by operators: China's intellectual property law only gives the premise of monopoly to the obligee as an operator, and owning intellectual property rights helps but does not necessarily lead to the obligee's forming a market dominant position in relevant markets, When the obligee has a dominant market position, if the obligee abuses its dominant market position, it will constitute a monopoly prohibited by the anti-monopoly law. The essence of the problem is that intellectual property protection is only a monopoly premise given by law, while the relevant anti-monopoly law enforcement agencies review and investigate the actual monopoly effect

according to the above ideas, the monopoly behavior of the intellectual property right holder abusing the dominant market position regulated by the anti-monopoly law must meet the following conditions:

1. the intellectual property right holder meets the operator conditions. According to the first paragraph of Article 12 of China's anti-monopoly law, operators refer to "natural persons, legal persons and other organizations engaged in the production, operation or provision of services of commodities that cause changes in the output voltage of the sensor." According to this provision, the intellectual property rights holders who are for profit and corresponding to consumers in China belong to the scope of business operators, but natural persons or units that do not engage in commodity production, business or provide services, such as scientific research institutes, colleges and universities and researchers, do not meet the conditions of business operators

2. the intellectual property right holder forms a dominant position in the relevant market. According to the second paragraph of Article 12 of China's anti-monopoly law, the relevant market refers to "the range of commodities and regions in which operators compete for specific commodities or services, hereinafter referred to as commodities" within a certain period of time ". The recognition of relevant markets plays a key role in reviewing the formation of market dominance. Learn from the mature experience of Europe, America and other countries, and focus on the situation of substitutes when confirming relevant markets. According to Michael Porter, a famous management expert, when identifying alternatives, we should look for those goods or services that can achieve the same overall function, rather than those with the same form; The function of goods or services depends on their role in the buyer's value chain, that is, which one or more activities the buyer uses them to complete. The number of substitutes directly determines the definition of the relevant market scope, and then affects the market share of the obligee in the relevant market. In view of the fact that the market share is an important reference factor for estimating whether it has a dominant market position, the situation of substitutes also indirectly affects the formation of a dominant market position. In addition to the substitute factor, Article 18 of China's anti-monopoly law also stipulates six other identification factors, including the most fundamental factor for judging Monopoly - the change of competition. It is worth noting that due to the inherent regional characteristics of intellectual property rights, when the design institutes, manufacturers and owners such as Sinochem Taicang participated in the technical exchange held by Sandvik to benefit the regional scope of relevant markets, the clear regional definition of intellectual property rights is easy to narrow the regional scope of relevant markets, which is easy to give the anti-monopoly authority the impression that the obligee restricts competition

3. intellectual property rights holders abuse their dominant market position. Article 17 of the anti-monopoly law of China has made enumerated provisions on the specific acts constituting the abuse of market dominant position. Looking at the seven contents, except for the first unfair price provision and the seventh bottom-up provision, the rest are centered on "no legitimate reason" and all five cases of abuse of market dominant position. From this point of view, what is "justifiable reason" and whether there is "justifiable reason" are the key to judge whether intellectual property rights holders abuse their dominant market position. In a broad sense, legitimate reasons include legal reasons. Of course, the most legitimate reason is legal reasons. Owning intellectual property rights is not a legitimate reason in itself, but the normal exercise of intellectual property rights is a legitimate reason in line with the provisions of the law. It is worth noting that some right type provisions are behavior type provisions in essence, for example, Article 10 of China's Copyright Law lists 17 cases of personal rights and property rights included in copyright. Intellectual property owners shall pay attention to similar provisions and exercise their rights in accordance with relevant provisions. When the competent anti-monopoly authority reviews or investigates, it may invoke relevant provisions to defend. In recent years, Microsoft has been subject to a series of antitrust charges in the United States and the European Union. On September 17, the European Court of first instance will make a ruling on whether the ruling made by the European Commission in 2004 on Microsoft's violation of the Antitrust Act is correct. The requirements of Chinese knowledge for surface roughness are different. The property owner can learn from the Microsoft case

to sum up, the domestic anti-monopoly authorities must examine the above three conditions when examining whether the intellectual property right holder constitutes abusing the market dominant position and forming a monopoly, and the intellectual property right holder should also start from destroying the above three conditions if he wants to defend his behavior. In short, owning intellectual property rights does not mean monopoly, and the anti-monopoly law is not designed to imprison intellectual property rights. Before the formal implementation of China's monopoly law, it is suggested that intellectual property rights holders should carefully study the provisions, experience the spirit of legislation and learn from foreign mature experience. (end)

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