知識產權的保護與濫用：評析高通案兼議工商反濫用知識產權新規

PROTECTION AND ABUSE OF INTELLECTUAL PROPERTY RIGHTS ANALYSIS ON QUALCOMM CASE AND THE NEW RULES OF THE STATE ADMINISTRATION FOR INDUSTRY AND COMMERCE ON PROHIBITING THE ABUSE OF INTELLECTUAL PROPERTY RIGHTS

The abuse of intellectual property rights to preclude or restrict competition has already become the focus of the enforcement of Anti-monopoly Law. The abuse acts, in the name of exercising intellectual property rights, not only run counter to the primary purpose and internal spirit of the protection of intellectual property rights, but also hinder technological innovation and market competition which then gives rise to antitrust issues. The Qualcomm case, investigated by the National Development and Reform Commission (NDRC) for over fourteen months and ending up with fine and many other corrective measures against Qualcomm, goes to the heart of issues concerning the abuse of intellectual property rights. The impact of Qualcomm case is, domestically and internationally, much greater on the code of competitive conduct and the enforcement of Anti-monopoly Law than the imposed fine of 6 billion RMB. This paper discusses the following issues: in what kind of abuse acts the Qualcomm case and the Qualcomm pattern behind are involved; as for antitrust cases fallen into the domain of intellectual property rights, how to define relevant market and market dominant status; the basis and rationality of the administrative sanctions; the practical significance and optimal space of the Provisions on Prohibiting the Abuse of Intellectual Property Rights to Preclude or Restrict Competition (hereinafter referred to as the Provisions) issued on April 7, 2015 by the State Administration for Industry and Commerce (SAIC) which will take effect in August this year. It is hoped to make multi-angle interpretation and analysis on the abuse of intellectual property rights from the act itself and enforcement measures to the norm establishment.