Abuse of intellectual property rights of transnational corporations in China (2)
As Intellectual property rights In modern society has an increasingly important role, therefore, whether the possibility of abuse of intellectual property rights or the consequences of abuse after, will greatly increase. In fact, whether at home or abroad, are not rare example of the abuse of intellectual property rights. For example, in the United States in recent years has ignited the Microsoft Monopoly Case, and Microsoft in the EU, China and Taiwan, by the violation Competition Law or fair trading allegations involve abuse of Microsoft's intellectual property rights issues. Once in 2003 aroused great concern of the United States Cisco Suing China Huawei Company violated its intellectual property rights, and the current DVD Patentee Union and DVD production enterprises in China, the United States Intel Company and between companies east of China, the United States General Motor Company and China Chery Intellectual property disputes between car companies behind, were also present TNC Suspected deep-seated problems of intellectual property rights abuse. Originally, the establishment and use of intellectual property system in China's basic purpose is to encourage and promote technical innovation, and the consequences of the abuse of intellectual property that would defeat the purpose, but because of damage to the market free and fair competition and hinder innovation in China. Therefore, multinational companies in China engaged in market abuse of intellectual property rights must be closely and seriously.
Competition policy is fundamental national public policy, their exclusive intellectual property rights also determine their abuse often result in the destruction of competition policy. Many countries and regions have the corresponding legal system?? Primarily in the " Antitrust Law "(Anti-trust laws, competition law, unfair competition, etc.) of the framework?? Sanction abuse of intellectual property, and in particular the administrative law enforcement and judicial practice of the strong operational expertise of some norms, such as 1995, U.S. Department of Justice and the Federal Trading Commission jointly issued the "Antitrust Guidelines for Licensing of Intellectual Property", the European Commission in 1996, "technology transfer regulations" (ECNo240/96), 1999, Japan Fair Trade Commission re-enactment of the "secret patent and technology license agreement guidance principles. " At the same time, WTO / TRIPs Agreement Article 40, paragraph 2, also provides members with all the other provisions of the agreement consistent with the premise, according to the members of the relevant laws and regulations, take appropriate measures to prevent or control those who may pose abuse of intellectual property rights, competition in the market adversely affect the setting permission Contract Practices or conditions, such as exclusive grant conditions prohibiting questioning the validity of intellectual property conditions, such as compulsory licensing package.
Multinational companies in China main forms of abuse of intellectual property
Abuse of intellectual property rights is not made specifically for multinational companies, but all types of intellectual property rights holders. In China, intellectual property rights abuses are not only in multinational companies. However, there are local companies in intellectual property rights in China have not formed a clear advantage, the immediate situation that they face some pressure from multinational corporations in intellectual property. "Antitrust Law" is not opposed to big business in itself, but in view of the large enterprises have a dominant market position relative to other companies more easily abuse its advantages (including intellectual property advantage), and therefore "anti-monopoly law" need to be "special attention"?? supervision and control.
Activities of transnational corporations in the global economy one of the protagonists. According to statistics, currently the world's total number of 63,000 transnational corporations, multinational companies 25% value share of global output, trade between multinational companies accounted for 60% of international trade, technology trade, 60%? 70%. With its Talent , Technology, management, assets and other great advantages, the most optimal allocation of global resources by multinational companies, especially technology, in knowledge always occupy leading position in the world. Patents and licensing fees in the world cross-border flows, developed 98% of total revenue multinationals. Multinational companies because of its scale, put more of their production and obtain the absolute number of patents and other IP are other types of enterprises is difficult to match, which to a large extent of its control and monopolize the market became a powerful legal weapon . With China's rapid economic growth and increasing integration into the international market, China has increasingly become an arena for transnational corporations, the corresponding, more and more multinational companies to the advantage of its intellectual property to China. With multinational companies in the Chinese market advantages of using intellectual property to strengthen its competitive position in the process, a variety of alleged abuse of intellectual property rights is also manifested itself in varying degrees.
(1) breach of "anti-monopoly law," the abuse of intellectual property
Intellectual property as a legal monopoly itself does not necessarily lead to the rights of all people have the market power of the conclusions, but as in other areas, like property rights, market power based on intellectual property rights, their access to or maintain a possible violation, "Antimonopoly Law"; even if the acquisition or maintenance of a legitimate right of people and may also conduct involving intellectual property has a fairly strong position to harm competition. Therefore, based on the United States and many other countries recognized the "intellectual property not specifically exempted from the review of the antitrust laws, nor particular suspicion, but should apply uniform Standard And principles of law "(see U.S. Department of Justice and Federal Trade Commission on April 6, 1995 jointly issued the" Antitrust Guidelines for Licensing of Intellectual Property "), multinational corporations have the same advantages of intellectual property subject to" anti-monopoly law "in constraints.
From a practical point of view, multinational companies to restrict competition in the case of intellectual property rights abuse in China is not uncommon, and because of their exclusive intellectual property and the main performance for a variety of restriction of competition, including various forms form Strategy Union, the conclusion of international cartel agreement or the implementation of other forms of collusion, use of the advantages of our market position to achieve the implementation of restriction of competition in our market on the improper implementation of mergers and acquisitions (IP access) and so on. Among them, the multinational corporations from abusing its dominant position to impose restrictions of competition, which often is more prominent, the classic symptoms of the following types:
First, the refusal to license. That people use their intellectual property rights owned by the exclusive rights of intellectual property, refused to grant permission to use its reasonable competitor to exclude others from competition, to consolidate and strengthen their monopolistic position. In
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