【作者】 宁立志；

【导师】 余能斌；

【作者基本信息】 武汉大学 ， 民商法学， 2005， 博士

【副题名】以对专利权限制为中心

【摘要】 知识产权作为专有权具有垄断性,这是一种合法的垄断,这种合法的垄断权必须正当行使,如果行使失当,则会破坏正常竞争秩序,而需要竞争法的介入。但正当行使与非正当行使向来殊难鉴别,其中需要经济学的考量、法价值的思考以及经验的运用,本文正是从这几方面展开研究并试图对这一问题的处理提出意见。 全文共分为五章。 第一章是知识产权限制的学理分析,这一章从三方面奠定了知识产权限制的理论基础。第一节是知识产权限制的经济学分析,文章从知识资产的产权性质入手,论述了知识资产既具有一定的排他使用性,又具有一定的公共性,适度的私权保护是必要的,但私权保护必须以利益平衡为限度,知识产权制度必须体现私权保护和私权限制相统一的原则,即私权保护是私权限制的前提,私权限制是私权保护不可缺少的制约,知识产权保护可能产生的外部不经济提供了知识产权限制制度合理存在的经济学依据。第二节为知识产权限制的法价值分析,主要论述知识产权法律制度特殊的价值体系模式,即个人——社会双向本位价值体系模式,其目的是为了实现保障个人利益与促进公共利益的统一,实现精神资源分配的公平和正义。第三节为知识产权与自由竞争的博弈,论述知识产权所保护的独占与竞争法所保护的竞争的冲突和协调,实质上是个人利益与社会利益博弈的过程,在这个过程中,个人利益和社会利益都受到正反两种力量的牵引,保护知识产权的制度与保护竞争的制度博弈的结果应为社会总体利益最优,这是知识产权的竞争法限制追求的目标。 第二章是知识产权限制的法律制度体系。这一章作者所勾勒的只是知识产权限制制度体系的一个框架,分为民法基本原则对知识产权的限制,知识产权法上的限制和竞争法上的限制。其中民法、知识产权法上的限制,均为私法自身的限制,有重要作用,却也有不足,故须辅之以外部的竞争法的限制,这是一种公法上的限制。第一节为民法基本原则对知识产权的限制。主要论述禁止权利滥用原则的含义、主要立法例、与诚实信用原则的关系以及禁止权利滥用原则对知识产权的适用,指出知识产权滥用有其特定的构成要件,知识产权滥用是指知识产权权利人或持有人,在行使知识产权权利时,超出了法律所允许的范围或者正当的界限,不公平或不合理地行使知识产权而违背公共政策的行为以及采取虚伪手段获得知识产权授权,不当保护知识产权而损害他人利益和社会公共利益的行为。第二节为知识产权法上的更多还原

【Abstract】 Intellectual property is a kind of legitimate monopoly, which should be used properly or else would break healthy competition order and result in the intervention of competition law furthermore. However, it’s difficult to differentiate right-use from misuse, which needs economic weighing, in account of legal values and experiences. It’s from these aspects that this article is developed and advices are brought forward.The full text is composed of five chapters.Chapter 1 centers on the theoretical analysis of intellectual property restriction, which establishes the theoretical basis of intellectual property restriction in three approaches. Section 1 makes an economic analysis of intellectual property restriction. The author reveals proper protection of private rights is necessary based on the characters of intellectual property right, i.e. some exclusion and commonality. However, considering the balance of interests, the principle of interactive between private rights protection and private rights restriction should be established. The former is the precondition of the latter, while the former is restricted by the latter. The externality born of intellectual property protection provides economic evidences for intellectual property restriction system. Section 2 makes an analysis of legal values contained in intellectual property restriction. The author explores special value mode of intellectual property system, i.e. individual and society oriented dualistic structure, which is aimed at protecting individual interests and promoting public interests as well, achieving fairness and justice in the course of distributing moral resources. Section 3 makes an analysis of the game between intellectual property and free competition, which reveals that the conflict and harmony between monopoly protected by intellectual property law and competition protected by competition law embodies the game between individual interests and public interests. The whole interests of society should be supreme in this game, which is the purpose of the competition law restriction of intellectual property.Chapter 2 explores the legal system of intellectual property restriction. This chapter outlines the sources of intellectual property restriction system, which include basic principles of civil law, intellectual property law and competition law. "As the internal restriction of private law, the restriction of civil law and intellectual property law is ofgreat importance and some disadvantages as well, which necessitates the supplement of external competition law restriction which is a kind of public law. Section 1 explores the restriction of civil law basic principles. This section centers on the meanings, main legislations, relationship with the honest and trust principle and its applying to intellectual property of misuse-forbidden principle, and points out that intellectual property misuse means that the owner or holder of intellectual property goes beyond the legal or proper scope of right, exercises intellectual property unjustly or unreasonably in breach of public policy and acquires license in a fraudulent manner, which provides unjust protection for individual interest at the expense of damaging others’ interests. Section 2 explores the restriction of intellectual property law, which centers on patent restriction, discusses respectively the institution of patent expiration, validity termination, validity denial, compulsory license, planned license of the exercise of patent, patent exhaustion, non-intent infringement, prior use, temporary transit, rational use and so on. Section 3 explores intellectual property restriction of competition law, which makes a primary discussion on both contrary and cooperative relationship between intellectual property law and competition law, and makes a rough list of intellectual anti-competition behavior so as to make a typology preparation for the following comparative study, which includes: sending warning letter of infringement improperly, refusal to license, tie-in, package license, charging improper royalty, price discrimination, cross license, collective price restriction, non-price restriction in license contract such as quantity and quality restriction, territory restriction, licensee restriction, field of use restriction, non-competition restriction, exclusive grant-back restriction, and improper collection of intellectual property.Chapter 3 and 4 review respectively the relationship between patent exertion and competition law under the constructionism of US and Japan and the conductism of Germany, EU and Taiwan. Under US anti-trust law, patent system evolves from completely free, via strict restriction, to dynamic balance, abundant with rich judicial experience; Japan Monopoly-forbidden Act and Norm Related to the Using of Injustice Trade Methods in Patent and Know-how License Contract enacted by Justice Trade Committee makes principle and concrete regulations on patent misuse; in Germany, patent abuses include: patent collection, restricting competition by license contract, patent pools and so on, which are regulated by Anti-competition Prevention Act. This Act is famous for its strict provisions on monopoly conducts and its Section 22 provides forconcrete regulations on patent rights use and competition law restriction. European competition law establishes two principles on the exercising of patent rights: principle of differentiating patent existence from using and principle of patent exhaustion, which evolves from Article 85-86 of European Union Treaty, to Commission Regulation(EC) No. 240/96 of 31 January 1996 on the Application of Article 85(3) of the Treaty to Certain Categories of Technology Transfer Agreements, then to Commission Regulation(EC) No. 772/2004 of 27 April 2004 on the Application of Article 81(3) of the Treaty to categories of Technology Transfer Agreements. In Taiwan, the relationship between intellectual property and fair trade law is mainly regulated by Article 45 of Fair Trade Law which is criticized for its abstract.Chapter 5 explores the design of China’s system. Based on the above theoretical and practical analysis, the author thinks that patent system is consistent with anti-trust system in some functions, i.e. promoting innovation, stimulating competition and increasing the consumer’s welfare, while patent system is contradictory to anti-trust system in protected interests, i.e. the conflict between private interests and social interests, in this game, the harmonization of these two systems should be achieved. So when designing China’s system, the proper exercising of intellectual property should be exempted and the illegal abuse of intellectual property should be regulated. As to exemption rule, it should apply to two behaviors, i.e. the exercising of patent itself without affecting competition and the action of some matters outside of panel right without affecting competition substantially, on conditions that they are lawful and due. As to regulating system, the following behaviors should be regulated: price restriction, charging improper royalty, quality and quantity restriction, improper territorial restriction, licensee and custom restriction, field of use restriction, package license, grant-back license, not to challenge validity of patent forbiddance, tie-in, cross license and patent pools; and the regulating mode should be a kind of dualistic model based on anti-trust law, combined with patent law. Finally, the author gives some suggestions on restricting patent misuse by anti-trust law in account of the difficulties exposed to Chinese enterprises.更多还原