On the Relation of Exercising of Patent Rights and Antimonopoly Law/DE LA RELATION ENTRE L'EXERCICE DU DROIT DE PROPRIÉTÉ INDUSTRIELLE ET LA LOI ANTITRUST

Abstract: Antimonopoly law provides exemption for the legitimate of patent casts regulation and control over the patent abuse. This article expounds the exemption subject, exemption condition, exemption occasion as well as exemption category, elucidates the relation of abuse behavior and antimonopoly law, puts forward concrete regulating approach on the patent abuse by antimonopoly law. Key words: legitimate of patent patent abuse, antimonopoly law Resume: le juste exercice du droit de propriete industrielle est immunise selon la loi antitrust, j'expose dans cette these l'objet, la condition, l'occasion et la categorie de son immunite. Pourtant, l'abus du droit de propriete industrielle est restreint aussi selon la loi antitrust, j'explique la relation entre l'abus du droit de propriete industrielle et la loi antitrust, puis propose mon projet afin de restreindre l'abus du droit de propriete industrielle par la loi antitrust. Mots-Cles: le juste exercice du droit de propriete industrielle, l'abus du droit de propriete industrielle, la loi antitrust 1. INTRODUCTION As patent is a monopolistic right, the complex relation of the of patent rights and antimonopoly law arises while antimonopoly law aims to cast blow on monopoly. Patent law consists with antimonopoly law on the purpose and function which aims to promote innovation and advance consumers' welfare. Nevertheless, patent law also conflicts with antimonopoly law latently on the game and balance of individual interests and public interests. These conflicts virtually reveal the contradiction between the private interests of patent law and the social interests of antimonopoly law. In light of this duality, it is stipulated according to Article 64, Antimonopoly law of P.R of the China (Draft for examining), operator who exercises legal rights in accordance with the rule of Copyrights Law of the P.R of China, Trademark Law of the P.R of China, Patent Law of the P.R of China is free from restriction, any behavior which breaching any of these laws or abuse of intellectual property shall be restricted accordingly. All this actually indicates the attitude of antimonopoly law towards intellectual property: one is the exemption of justifiable exercise of intellectual property, the other is regulation and administration on abuse of intellectual property. 2. THE EXEMPTION ON JUST EXERCISE OF INTELLECTUAL PROPERTY BY ANTIMONOPOLY LAW The exemption on legitimate of intellectual property by antimonopoly law is substantially a reflection of the internal connection of patent law and antimonopoly law on legislation. Owing to the consistence of patent system and antimonopoly law on urging innovation and advancing consumers' welfare, Patent Law can effectively carry out its incentive on research and innovation, facilitate competition. Therefore, exemption is provided for the just exercise of patent rights by Antimonopoly law. 2.1 Subject of Exemption Not all exercises of patent rights can be exempted from antimonopoly law. The subject of exemption can only be limited to the exercise of patent rights. Then how to determine the criterion of exercise? The author of this paper thinks that when making a judgment about whether a patent behavior constitutes patent abuse, we should take two points into consideration: first is the behavior is in essence an act of exercising of patent rights, second is the proper exercise. Only when these two points both meet, can the act be exempted from antimonopoly law correspondingly. 2.1.1 The act of of patent rights. First of all, the actor must achieve the legal acquisition of the patent rights. If the actor exercises some so-called rights without virtual acquisition of the patent or exercises it in the name of patentee without substantive patented right, or continues to his patent rights after the expiration of the patent, it is obviously not the case mentioned above. …

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