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美国作业代写:Abuse of intellectual property rights

2017-11-25 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Abuse of intellectual property rights,供大家参考学习,这篇论文讨论了知识产权滥用。近年来,知识产权滥用成为立法和执法的热点问题,知识产权滥用阻碍竞争和创新,所以亟需完善知识产权滥用的反垄断制度,规制滥用知识产权排除、限制竞争行为,促进公平竞争。而知识产权滥用的判定标准则是司法实践中的难题。

Abuse of intellectual property rights,知识产权滥用,essay代写,paper代写,美国作业代写

In recent years, the abuse of intellectual property rights has become a hot issue in legislation and law enforcement, and the abuse of intellectual property hinders competition and innovation, so it is urgent to perfect the anti-monopoly system of abusing intellectual property rights, to regulate the abuse of intellectual property rights and to restrict competition.

With the rise of knowledge economy, the importance of intellectual property has been highlighted, the competition in this field is increasing, and the antitrust regulation of IPR abuse has aroused more and more attention.

The abuse of intellectual property rights refers to the improper exercise by the obligee of intellectual property rights in accordance with the law, which is beyond the scope or the proper limit, and harms the public interests of others and society.

In accordance with the provisions on the prohibition of the abuse of intellectual property rights, restrictions on competition, and articles 3rd and 55th of the Antimonopoly Act, the legislation expressly prohibits the abuse of intellectual property rights and restricts competition, including monopolistic agreements and abuse of market dominance.

The monopoly agreement refers to the decision, agreement or other cooperative behavior between the operators to eliminate and restrict competition. The monopolistic agreements under the Antimonopoly Act include horizontal fixed price, market segmentation, joint boycotts and vertical restraints on resale prices, exclusive transactions and other forms of expression.

The abuse of market dominance refers to the market position in the relevant market where the operator has the ability to control the price, quantity or other trading conditions of the commodity, or to hinder and influence the competence of other operators to enter the relevant market. Including the refusal of license, limited transactions, tying and patent associations and other forms of expression.

Intellectual property rights, as a special right, constitute the abuse of intellectual property rights, must have the following three elements:

The subject element means that the subject must be the rightful owner of the intellectual property rights, mainly refers to the intellectual property owners, but may also include the licensee and the assignee in the specific circumstances.

The element of conduct refers to the improper exercise by the obligee of the intellectual property rights lawfully enjoyed by the right, beyond the scope or the proper limits permitted by law. That is to say, whatever the reason or motive of the obligee, as long as it is objectively in violation of the legal provisions of the manner of improper exercise of his rights, it can be identified.

The damage element means that the obligee abusing the intellectual property right has the result of damage and has causality with the result of the damage, so the so-called damage result is to damage the lawful interests of others and the social public interest.

Western countries have always attached great importance to the use of legal protection of intellectual property rights, the abuse of intellectual property rights of antitrust regulation after a long period of gradual exploration, in theoretical research, legislation and judicial practice has a relatively mature approach. Comparatively speaking, the anti-monopoly regulation of IPR abuse in China is still in its infancy, and it faces many realistic problems, which need to be improved and perfected in the future legislation and judicial practice.

Article 55th of China's anti-monopoly law stipulates that "The operator shall apply this law to the behavior of abusing intellectual property rights and excluding and restricting competition." "Subsequently, the regulations formulated by the State Administration for industry and commerce have made detailed provisions on the exclusion of monopoly agreements and the abuse of market dominance by the two types of non-price abuse of intellectual property rights and the restriction of competition behavior, which has enhanced the operability of antitrust enforcement by commercial and industrial authorities." However, the provisions apply only to the monopoly cases under the jurisdiction of SAIC, and are not applicable to the price monopoly cases under the jurisdiction of the NDRC and the concentration cases of the business operators under the jurisdiction of the Ministry of Commerce.

China adopts the mode of law enforcement by mofcom, SAIC and NDRC respectively in anti-monopoly administrative law enforcement. The Ministry of Commerce governs the concentration of the cases, the SAIC governs the monopoly agreement and the abuse of market dominance cases, the NDRC's jurisdiction of the price monopoly cases, due to the division of Duties, the provisions do not deal with the concentration of operators and price monopoly. However, in practice, the problem of monopoly in the field of intellectual property may involve the above-mentioned fields, there is no uniform law enforcement agency, and the power of law enforcement agencies is dispersed, which is difficult to form effective supervision.

Perfect legislation is the precondition of law enforcement, with the continuous accumulation of antitrust enforcement experience, we can draw on the experience of the developed countries, combine the national conditions, formulate the anti-monopoly guide in the field of intellectual property, clarify the principles of the abuse of intellectual property, enforce the standards and analysis framework, and provide the operable basis for anti-monopoly law enforcement. The law of anti-monopoly enforcement of intellectual property right suitable to our national conditions is explored.

Our country should set up an independent and authoritative antimonopoly authority, break the situation of multiple departments to separate law enforcement, unify the law enforcement. In the law enforcement process to accumulate experience, improve the enforcement of all aspects and procedures. Because the antitrust regulation in the field of intellectual property is very professional, we can draw on the experience of foreign countries, employ the Expert group composed of experts and lawyers with solid knowledge in intellectual property field, and provide professional guidance to improve the level of anti-monopoly law enforcement.

The judgment standard of intellectual property abuse is a difficult problem in judicial practice. The author believes that the principle of effect analysis should be adhered to in practice: first, whether the exercise of intellectual property rights exceeds the scope or the proper limits permitted by law, and beyond the scope and limits, it can be concluded that there is abuse of intellectual property rights. The regulations expressly prohibit the abuse of intellectual property rights, the restriction of competition, including monopoly agreements and abuse of market dominance in two cases, and set out their own detailed identification factors; the second is to see whether the exercise of intellectual property rights has the effect of excluding and restricting competition. The intellectual property system is designed to create an open, free and competitive market, the abuse of intellectual property rights of the right, on the one hand will limit the innovation of competitors, on the other hand will lead to their lack of competition to lose the momentum of innovation, not conducive to the long-term development of the relevant market.

The monopolistic acts under the Antimonopoly Act include monopoly agreements, abuse of market dominance and concentration of three of operators. The scope of the abuse of anti-monopoly regulation should not be confined to monopoly agreements and abuse of market dominance cases, and laws and regulations should be introduced to include price monopoly cases and business concentration cases in the scope of IPR abuse and antitrust regulation.

On the whole, the anti-monopoly regulation of IPR abuse in China is still in its infancy, and the regulation of IPR abuse in China is only a few provisions in the anti-monopoly Law, the Regulations and other relevant regulations, and the legislation is not perfect and the law enforcement Stanaio. Therefore, our country's intellectual property abuse antitrust regulation system still needs to explore and perfect in practice, prevent and stop monopoly, and strive to create a market environment that stimulates innovation and fair competition.

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