论专利权的滥用及其法律规制
发布时间：2019-02-08 16:45
【摘要】：知识经济时代,知识产权越来越成为人们关注的焦点。由于我国知识产权立法起步较晚,并且被动立法的法律特征明显。因此,在我国的知识产权法律体系中对于知识产权滥用的法律规制相对缺失,现有法律中仅有的一些规制制度也没有得到充分使用。专利权滥用是指专利权人违背正当方式,而以不公平、不适当的方式行使专利权,并给相对人造成损害的行为,专利权人以违背专利法对专利权给予保护之社会与经济目的的方式来行使被法律确认的权利。如果任凭专利权滥用而不加以规制,以专利制度促进技术创新、技术转移和信息扩散的目标就难以实现,最终有害于一国的技术进步和经济增长。 滥用专利权的行为表现多种多样,但基本上可以分为越权行使和限制竞争行为两大类。越权行使是指专利权人行使专利权时超出了权利范围；限制竞争行为则是专利权人行使专利权时虽然没有超出法定权利范围,但不合理地限制了市场竞争。越权行使是民商法规范予以禁止的,而限制竞争行为则是竞争法予以规范的。因此,在我国,要有效规制专利权滥用,一方面需要在《专利法》的进一步修改中增加有关专利权滥用的条款；另一方面在通过《反垄断法》进行原则规定的同时,由反垄断主管机关根据不同时期的具体情况指定专门的行政规章加以解决。 本文共分四章。第一章是两个案例分析并对我国专利权滥用规制制度的缺失原因和强制许可在我国的应用进行分析；第二章在第一章的基础上对专利权滥用及其法律规制的基本理论进行梳理；第三章是针对各国专利权滥用规制制度的比较研究；第四章是对我国现行专利权滥用法律规制制度进行评析并提出完善设想。
[Abstract]:In the era of knowledge economy, intellectual property has become the focus of more and more attention. Due to the late start of intellectual property legislation in China, and the legal characteristics of passive legislation is obvious. Therefore, the legal regulation of intellectual property abuse is relatively lacking in our country's intellectual property legal system, and some of the only regulatory systems in the existing laws have not been fully used. The abuse of patent right refers to the patentee's act of violating the proper way and exercising the patent right in an unfair and inappropriate manner and causing damage to the relative person, The patentee exercises the rights recognized by law in a manner contrary to the social and economic purposes for which patent rights are protected by patent law. If the patent abuse is not regulated, the goal of technology transfer and information diffusion will be difficult to achieve, and it will be harmful to the technological progress and economic growth of a country. The behavior of patent abuse is varied, but it can be divided into two categories: ultra vires exercise and restriction of competition. The exercise of ultra vires rights means that the patentee exceeds the scope of the right when exercising the patent right, while the act of restricting competition is that the patentee does not exceed the scope of the legal right when exercising the patent right, but unreasonably restricts the market competition. The exercise of ultra vires is prohibited by civil and commercial law, and the restrictive competition is regulated by competition law. Therefore, in order to regulate patent abuse effectively in China, on the one hand, it is necessary to add provisions on patent abuse in the further revision of Patent Law; On the other hand, when the principle is stipulated by the Anti-monopoly Law, the antitrust authority shall designate special administrative regulations according to the specific conditions of different periods to solve the problem. This paper is divided into four chapters. The first chapter is two case studies and analyzes the reasons for the absence of patent abuse regulation system and the application of compulsory licensing in China. The second chapter combs the basic theory of patent abuse and its legal regulation on the basis of the first chapter. The third chapter is a comparative study on the regulation system of patent abuse in various countries, and the fourth chapter is to analyze the current legal regulation system of patent abuse in China and put forward some suggestions.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42
本文编号：2418567
[Abstract]:In the era of knowledge economy, intellectual property has become the focus of more and more attention. Due to the late start of intellectual property legislation in China, and the legal characteristics of passive legislation is obvious. Therefore, the legal regulation of intellectual property abuse is relatively lacking in our country's intellectual property legal system, and some of the only regulatory systems in the existing laws have not been fully used. The abuse of patent right refers to the patentee's act of violating the proper way and exercising the patent right in an unfair and inappropriate manner and causing damage to the relative person, The patentee exercises the rights recognized by law in a manner contrary to the social and economic purposes for which patent rights are protected by patent law. If the patent abuse is not regulated, the goal of technology transfer and information diffusion will be difficult to achieve, and it will be harmful to the technological progress and economic growth of a country. The behavior of patent abuse is varied, but it can be divided into two categories: ultra vires exercise and restriction of competition. The exercise of ultra vires rights means that the patentee exceeds the scope of the right when exercising the patent right, while the act of restricting competition is that the patentee does not exceed the scope of the legal right when exercising the patent right, but unreasonably restricts the market competition. The exercise of ultra vires is prohibited by civil and commercial law, and the restrictive competition is regulated by competition law. Therefore, in order to regulate patent abuse effectively in China, on the one hand, it is necessary to add provisions on patent abuse in the further revision of Patent Law; On the other hand, when the principle is stipulated by the Anti-monopoly Law, the antitrust authority shall designate special administrative regulations according to the specific conditions of different periods to solve the problem. This paper is divided into four chapters. The first chapter is two case studies and analyzes the reasons for the absence of patent abuse regulation system and the application of compulsory licensing in China. The second chapter combs the basic theory of patent abuse and its legal regulation on the basis of the first chapter. The third chapter is a comparative study on the regulation system of patent abuse in various countries, and the fourth chapter is to analyze the current legal regulation system of patent abuse in China and put forward some suggestions.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42
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