On the post-TRIPs era of anti-monopoly legislation of intellectual property value selection

Keywords:: post-TRIPs intellectual property value orientation of anti-monopoly legislation

Summary: After the TRIPs era, the level of IPR protection in China and the world standards in advanced countries, but China has a very low proportion of independent innovation, intellectual property rights of foreign intellectual property have become closed after entering the Chinese market, exclude competitors tools. Intellectual property rights of a country should be anti-monopoly legislation and their specific values ​​at home and abroad to adapt to Economic and political environment, reflected in its "home", and "the times" features. Hegemony as developed countries have the knowledge, intellectual property rights have been relaxed antitrust regulation, who holds a position conducive to intellectual property rights, their position with the technological backwardness of the developing countries, very different. China anti-monopoly legislation in the process of intellectual property , it is imperative not to seek foreign Technology transfer legislation; but from a strategic perspective to determine the anti-trust legislation of intellectual property values, that is, social welfare-based, and strengthen anti-monopoly regulation.



"Third-rate companies sell products, companies selling second-rate Technology, first-class companies sell standards." A simple folk rhyme, but it points to the core competitiveness of modern enterprises the key changes. Due to lack of technical support for core standards, China as the world's DVD's largest producer, there are more than 90% of the profits of foreign IP rights into the hands of a billion dollars a year to pay royalties, in the unsustainable situation, turn to OEM production, resulting in the loss of national brands. This core Technology is the world's enterprises, "Technology patents, patent standardization," the role of the intellectual property business strategy results in miniature.

TRIPs through trade links, build a worldwide one of the high standard of intellectual property protection, intellectual property rights holders is inevitable for the abuse of monopoly and create the conditions. Companies with core Technology standards in the relevant fields in an absolutely leading position in industry as a whole has indisputable right to influence and manipulation. The trend of Economic globalization, the impact and control, often through the protection of intellectual property Law countries become solid and strong.

How to prevent legislators away from the original intention of the intellectual property system and become a tool of innovation monopoly, is the globalization of the new economy to the world in the common proposition. At present, many countries already have the principles of intellectual property Law and system of anti-monopoly China is only in recent years that raised the issue, the lack of appropriate objectives, principles, framework and institutional support, many domestic scholars by drawing on the experience of developed countries, by improving the measures. But it is worth noting that, although developed countries also faced the problem of conflict of intellectual property and antitrust Laws, but as the world's intellectual property exporting country, the use of its intellectual property power, both anti-monopoly legislation in the intellectual property value orientation is to have fundamentally different interests and positions The.

United States, Japan and other developed countries due to the loss of traditional manufacturing strengths, their intellectual property has become a major means to recover the market. Intellectual property rights in these countries the extent permitted by antitrust regulations tend to loose, who holds a position conducive to intellectual property . the other hand, China: As China's independent intellectual property rights in international trade, the proportion is low, the legislation of intellectual property and antitrust inversion phenomenon (with the accession to the WTO, China's intellectual property legislation has been incorporated into the track with the world, while the anti-monopoly Law is recently developed, very perfect, the issue of intellectual property antitrust provisions only indicative. is the direct result - to give someone else a "spear", and his hand was not "shield" - knowledge of foreign countries property rights in China can drive straight under the protection of intellectual property Law, while the project has independent intellectual property rights in China because the Chinese anti-monopoly legislation of intellectual property defects, intellectual property rights of foreign monopoly of the power of no return fire.

If you can not see this fact, our legislation will result in a major strategic mistake. This paper argues that, because the domestic economy and international Economic forces of the different post-TRIPs era, we must first be under the intellectual property strategy of rejuvenating the country handle the first tasks, not to directly seek foreign technology transfer legislation, but from the reality of international Economic and political environment and the domestic Economic situation as the basis for stArting to re-examine our intellectual property and antitrust relationship between the thinking of intellectual property rights inherent anti-monopoly legislation Why value? they tend to protect the interests of the community who is really in?
First, the source of the problem of intellectual property antitrust
IP as a form of knowledge products, the core essence is an innovative information, and its material carrier is a multi-form nature of the characteristics can be replicated. Intellectual property information in the core without prejudice to their case, having used more than the same time, completely different from the traditional property rights. to balance the expenditure of hard intelligence information about the creation of information carriers with the contradiction between the use of cheap and convenient, meet the statutory requirements under the law of intellectual innovations in the legal status of private property. proprietary intellectual property through a legal form, one can protect the intellectual property rights to the public through a period of time, the dissemination of its knowledge products, and access to exclusive economic benefits, to compensate and to encourage innovation and intellectual property rights of human knowledge to achieve the objective of promoting social and economic progress. Therefore, from the production point of view of intellectual property rights, intellectual property is inherently a legal monopoly, but that does not mean intellectual property antitrust issues would not exist.

As the economics of intellectual property law's paradox: "There is no monopoly of legitimate production would not have enough information, but with the legal monopoly too much information will not be used." [1] of which about The problem is not intellectual property rights per se, but rather the exercise of intellectual property. IP This is the "double-edged sword" in safeguarding the interests of rights holders, but also easily become a tool for abuse of rights. For example, more and more enterprises applications for intellectual property is not to directly or through licensing to profit, but to prevent competitors from entering the field. follow-up to face the type of innovation is often difficult to set up the original owners of intellectual property around the patent pool (patentpool), has occupied a dominant position in the market was the original owner of the suppression and exclusion of intellectual property rights. And in the absence of follow-up innovation possibilities on the other hand, the original intellectual property owners are able to use its market dominance to show monopoly on consumers who's arrogance. Microsoft products in its instructions clearly marked, "to use the software for all damage caused, the Company does not assume responsibility." Therefore, as other tangible property, like intellectual property also faces tough issues to prevent the abuse of rights, but the difference is, intellectual property rights abuse more likely to be the cloak of its legal monopoly in the shelter. The exercise of intellectual property regulation the one hand, rely on intellectual property law and civil law and other private means of their own to be adjusted, but more importantly, you need to rely on such strong anti-monopoly law means public authority intervention to protect the interests of society as a whole balance.

Rousseau in the "" Social Contract Theory>> in words, "Man is born free, and nothing is in chains to the outside." Unlimited world without rights, intellectual property rights is no exception. And in a market economy, knowledge property system and anti-monopoly system is also not mutually exclusive. from the stimulation of innovation, the two have the same purpose. intellectual property rights to determine the wisdom of private innovation with its intangible property rights, and anti-monopoly system is the private right to prevent such wanton to expand at the expense of the public good. Both are entrusted with the common goal of promoting social innovation, and its essence are two different competitive logic in two separate but interrelated systems interact. Some scholars have vividly intellectual property law and The role of anti-monopoly law that the same thing the metaphor of "carrot" and "stick" the relationship [2]. Intellectual Property Law by giving a limited proprietary right owner and the resulting benefits of the "carrot" to encourage incentive to innovate, anti-monopoly law through the "stick" to break the monopoly of human rights, restore market competition, survival of the fittest the use of market mechanisms to induce continuous innovation society. From another perspective, that intellectual property law by requiring the initial innovation public, as well as follow-on innovation to provide "reasonable use" and not subject to intellectual property "misuse" of the right to protect the rights of the follow-up innovation, and antitrust protection of proprietary intellectual property through the competition in the market other than the opportunity to maintain market innovation power. Since the production of any new intellectual property are inevitably inspired by the previous experience and pave the way, are the intellectual achievements of mankind prior to inherit and carry forward, so that each person's intellectual property rights should not be absolute (especially when the knowledge Alienation of rights of property of certain persons into a competitive business tool to curb another time), but should be regulated by law, ensuring that intellectual property is not set against the original intention of the legislator.

Second, the Foreign Comparative Perspective Antitrust Regulation of Intellectual Property Legislation evolution of values
After accession to the WTO, China's intellectual property law in accordance with TRIPS requirements have been an attempt to achieve "integration with the world's" strict protection standards. In the new economic era, attention to intellectual property rights of a country is undoubtedly correct, however, intellectual property legislation issue, one way of thinking we can not blindly pursue requirements from developed countries, it will infinitely expand intellectual property protection. Marxist materialist conception of history tells us that a country's economic base determines the superstructure, the superstructure need to subject the services in this basis in order to promote social progress. the other hand, the U.S., EU and other developed countries and regions the relationship between intellectual property and antitrust history, we can see, these countries and regions in the anti-monopoly regulation of intellectual property legislation is not a value orientation blind pursuit of high standards and strict requirements, but also often not static, but with their economic structure, economic strength and the fundamental objective of the positioning and selection, and ultimately serve their fundamental interests.

(A) of the American Intellectual Property values ​​antitrust legislation Evolution
1. American capitalism, the development of early (mid-century founding of -19), for the liberation of productive forces, strengthen intellectual property protection, making it exempt from antitrust review
The initial U.S. intellectual property system, pArticularly the patent system, from its former sovereign state inherited the British system, .18-century Britain, with the overseas trade and colonial expansion, has accumulated a vast wealth of raw materials and markets, as a handicraft workshop support the production capacity has become stretched, economic development, the only "short board" is the lack of production tools and technologies. early in the 16th century the British established system of protection of intellectual property rights, this time played an important historical role, it makes Almost all of them into a cult of the intellectual property. A new invention came into being. Britain became the world's economic leader. and just the founding of the United States, just to catch up with this capitalist industrial revolution events, technological advances in the United Kingdom to the United States left a deep impression. New production technologies in the case of desperate, as the founders of the emerging bourgeoisie, the United States attaches great importance to intellectual property rights. The United States Constitution to the intellectual property system as taxes, bankruptcy and other major issues relevant to country's economy, as included in the federal uniform legislation areas. Madison, the father of the United States Constitution states that "this (patents, copyrights) the benefits are almost certainly right. writer's copyright in Great Britain has been recognized as a common law right. (For the same reason ) should belong to the invention inventor the right to ... .... In both cases, the public interest fully consistent with the individual requirements. "[3] the U.S. Congress in February 16, 1790 passed the patent law. As President Abraham Lincoln at the time I is a famous inventor, he further strengthened the policy of patent protection.

In view of this, quite a long period of time in the next, even if the U.S. system to develop anti-monopoly law, but the general view is that American society: the goal of antitrust and intellectual property law to the contrary --- antitrust laws to promote competition, The intellectual property rights of intellectual property law is to grant people a certain period of monopoly and competition to exclude unauthorized enjoyed monopoly interest (SeeAtariGamesCorp. v. Nintendo ofAmerica, Inc., 897 F. 2d 1572, 1576 (Fed. Cir. 1990 ), in DeborahA. Coleman: An-titrust Issues in the Litigation and Settlement of InfringementClaims, Akron Law Review Akron Law Review. 2004., so in dealing with intellectual property and antitrust issues, almost one-sided in favor of the people of intellectual property protection, that is, that intellectual property is a legal monopoly, it has nothing to do with antitrust, intellectual property rights to the patent for the core countries can be exempted from antitrust scrutiny; the exemption reason is that intellectual property rights encourage innovation and energy " Add the fire of genius the fuel of interest. "
2. U.S. monopoly capitalist period (late 19th century, 90 -20), to prevent monopoly of the social economic problems, intellectual property rights in the "legal rights" within the exemption review, the Court began developing the system of intellectual property rights abuse, and further Anti-monopoly legislation to strengthen intellectual property
In the liberal economic policy of laissez-faire capitalist industrialization and development of the unprecedented release of .1880 to 1920 the United States during the many emerging industries, such as electrical, chemical, etc., has embarked on a Monopoly. Such a monopoly is not only including market, plant and equipment, but also the control of the patent, the control of industrial Research and technological personnel training on the control. By this time most of the U.S. commercial value of the stock will also be integrated into the patent being. 19th century, caused by the patent monopoly litigation abound. The economic crisis occurred frequently. North American agricultural areas in southern and western populist radical movements emerged, American farmers expressed their economic power, especially the concentration of banks and financial institutions and the large concentration of land speculators and railroad companies doubt the proposed decentralization of political and economic power requirements.

Once as a "legal monopoly" of the patent system at that time become the target of political pArties .1933 Hoover pointed out that the United States, the worldwide recession of the reasons is a monopoly, and led to the monopoly the main reason is the U.S. patent system. In the interim the economy Committee on Patents and demonstrate the relationship between economic concentration at the hearing, economists Hamaierdun (WaltonHamilton) in its "patent and free enterprise" (Patents andFreeEnterprise) the Article points out: invention is a process of social development, not invention personal credit for the invention to keep away from corporate profits, if you want to promote practical technology, we must abolish the patent system [4]. until 1941, Theodore Roosevelt National Patent Planning Commission to develop a thorough study of the pros and cons of the patent system, the recognized "by the U.S. patent system constitutional mandate ... ... is the foundation of our entire civilization, "the legitimate status of the patent system was able to recover.

At this point, people use intellectual property rights for intellectual property legal monopoly, tying to force trading pArtners to abuse of intellectual property rights trading, the U.S. court has already changed the IP from the past attitude of antitrust scrutiny. The court pointed out that if allowed to knowledge property rights in any way to expand their private contractual rights, intellectual property law would seriously undermine the interests of balance design (Motion Picture Patents Company v. UniversalFilm Co. EtA.l, 243 US 502. 1971 .. since 1917 MotionPicture case started 1931 Carbice particular case to this stage in 1952, the Court began developing the principles of patent misuse, "the abuse of patents" has become an important patent infringement lawsuit defense of one of the reasons. The court held that should distinguish between the legal rights and intellectual property contract rights. intellectual property law grants exclusive rights to the intellectual property rights of intellectual property rights is absolutely right, no person shall not exercise without permission, otherwise constitute infringement. and intellectual property assignment or license agreement is the agreement are intellectual property rights area, it should be accepted other than intellectual property law norms.

With Keynes "Government intervention in the economy" theory, and the Harvard School of modern theory of industrial organization established to further popular, the U.S. government that promote U.S. economic development is the key to breaking the monopoly to promote competition, so more stringent antitrust policy is implemented .20 in the early 70 century, the U.S. Department of Justice approved the review of intellectual property licensing practices of the "Nine No" principle (the "NineNo-Nos"), including the tying allowed, not allowed to charge a fee patent expiration so obvious is not conducive to intellectual property licensing nine people "are not allowed to act" and as an official standard of review to include the 1977 <"International business activities in the antitrust enforcement Guide>> In 1988, Congress passed the < <Patent Misuse Reform Act "> added two provisions, the principles of patent misuse was further restricted. These two directly related to the practice of the patent license agreement, namely: § 271 (d) (4) refusing to enter into license contract or reject the transfer of patent rights; § 271 (d) (5) enter into a patent license contract or the purchase of patented products are made on the premise of another patent license contract, or purchase another separate product, unless the patent owner After the relevant market for a product after a patent or has control of the market (US PatentAct (35 United Sates Code), § 271 (d) (4), (5) .. U.S. Department of Justice Antitrust Division and the Federal Trade Commission set up a special group to deal with a lawsuit against the patent. Most American companies stopped the activities of the patent involved, which makes including Xerox, including many U.S. companies lost a lot of the market. 60 years since the 20th century, U.S. antitrust cases over the previous 10 years has tripled, and in favor of the plaintiff's antitrust bureau rate is very high. This period is called "the golden age of anti-trust", not only in intellectual property legislation to expand the anti-monopoly legislation, and in of intellectual property rights have also been judicial antitrust scrutiny.

3. International capitalism period (20th century, since the 90s), the United States in the world to implement the high standards of protection of intellectual property rights, weakening the anti-monopoly law
90 20th century, with the European Union and Japan and other regions and the country's economic rise, the U.S. government and industry on reflection, after that the United States in global economic competition is the biggest advantage of the resources and technology and personnel, and maintenance of intellectual property is the most effective means of its resources. and in an academic, with emphasis on the efficiency of the world economy, the Chicago School began the Harvard School of critical theory of industrial organization, pointed out that the government should minimize market intervention, whether the enterprise in violation of recognized anti-monopoly law, the economic efficiency of enterprises should be promoted as a measure of whether there. So, industry concentration, mergers, agreements in the last century these restrictions 50,60's commercial activities are severely restricted, and now have to re-evaluate its efficiency , significant reduction in the implementation of antitrust laws.

Field of intellectual property is also true. The U.S. government and the courts changed the field of intellectual property for the excesses of some exclusion restrictions apply strictly to the traditional practice of antitrust law, antitrust enforcement should not impede the idea of ​​intellectual property rights of others through acts of some exclusion restrictions R & D costs and achieve the interests of recovery to protect its technological innovation, technology promotion and commercialization of passion [5] In 1995 American "<IP licensing antitrust Guide>> it was pointed out that" intellectual property is neither particularly from antitrust review, nor particularly suspect of anti-monopoly. "Since then, the United States began to modify the patent law, copyright law, trademark law, intellectual property rights will be included in the form of new and emerging technologies to expand the scope of intellectual property protection, by <" American Inventors Protection Act> "(1999)," "Technology Transfer Commercialization Act>" (2000) and other intellectual property rights legislation, and so actively adjust the interest and promote the development of intellectual property rights, innovation and production; to strengthen intellectual property protection; In addition, through <"U.S. Omnibus Trade and Competition Law"> in the "special 301", the entry conditions of the United States makes all U.S. trading partners must be effective and full protection of domestic intellectual property rights for the worldwide promotion of American-style level of IPR protection, high-tech products for the protection of the U.S. occupation of foreign markets has created very favorable conditions.

Contemporary American attitudes towards intellectual property monopoly, Microsoft has split from the turn of the century can be seen the case. When Microsoft faced prosecution monopoly split, the U.S. economy or even in an unprecedented understanding community attitudes, denounced the U.S. anti-monopoly law . Federal Reserve Chairman Alan Greenspan said, "the U.S. set of anti-monopoly law is a hodgepodge of economic ignorance and impulses." and the Nobel laureate in economics, Friedman M · more bluntly, "not the implementation of anti-monopoly law promote competition, so it is best to abolish it altogether. "And all over the nation's 249 economists signed a letter to President Clinton sought to withdraw the Justice Department's prosecution of Microsoft, [6]. Finally, the Ministry of Justice to the Court for cancellation of the" split Microsoft " Its request for "Microsoft bundled products," the charges. the United States this change in attitude is in line with its hegemony as the world's knowledge of the position of the owner.

(B) of the European Union anti-monopoly legislation of intellectual property rights evolution of values
1. European integration, the establishment of early (20th century, the late 50's -60), the European Social undone, the community level, weak anti-trust regulatory, intellectual property rights to restrict competition on the behavior of members of a tolerance
European integration started in Western Europe after World War II. When economic depression in Europe, international status has plummeted, to the European East-West ideological confrontation caused a strong political pressure, in the U.S. "Marshall Plan" of the intervention, Western Europe, decided to go one of collaboration. As deeper political cooperation in the failure of reality, integration of the breakthrough last choice in the coal and steel joint on the (Select the main reason this area is the joint: one in order to prevent Germany's rapid economic recovery, re-pose a threat to Europe, therefore the need for Germany's key strategic resource constraints, on the other hand, after two world wars to cede territory and pay indemnities to avoid the potential new strategy for ethnic conflicts, so I chose the community for joint, unified management member of the development and use of coal and steel. .1951 in <"Building the European Coal and Steel Community Treaty" through, marking the beginning of European integration. The treaty, which aims to "establish a common market, common objectives and the basis of the common institutions of the European Coal and Steel Community. "Although the earliest form of European integration is the European Coal and Steel Community-oriented anti-monopoly law, but because of the limitations of the field of application, but can not be members of the intellectual property of antitrust actions regulate it. and Europe as the birthplace of intellectual property protection, Member States have their own basic protection of intellectual property legislation. Therefore, the common body of intellectual property laws of the Member States can go their own way, according to domestic law in the Community legal limit competition, free from EU antitrust checks and balances.

European Coal and Steel Community in the successful demonstration of the sovereignty of the possible economic integration between countries and benefits after the "spillover effect" of Western European countries to promote the principles of the Coal and Steel Community to other economic areas, and establish a common market .1967 in < <Brussels Treaty>> effect, the European Economic Community, European Atomic Energy Community established and, together with the European Coal and Steel Community, known as "European." provisions of the EC Treaty, one of the purposes of the treaty concluded, is "to establish a to ensure that no distortion of the mechanism of the common market system. "Although the European (economic) community was established, marking the full establishment of EC competition law, however, due to the EC Treaty Article 36, paragraph 1, Article 30 to 34 the provisions of the Treaty does not affect the Member States the protection of industrial or commercial property for the purpose of import, export or transit of prohibited or restricted by, so the Community of intellectual property such "legal" restrict competition, remained tolerant attitude.

2. European Integration of the consolidation period (late 20th century, 60 -80 era), for the establishment of a large European market and strengthen community-level system of intellectual property antitrust, intellectual property rights of Member States to restrict the exercise of business
In the common market, the members hope that their intellectual property to obtain more revenue, and thus all countries in the legislation as much as possible to take advantage of this "legal monopoly" to safeguard their intellectual property rights. To the late 20th century, 60 With the increasing development of technology and intellectual property transfer, the use of intellectual property rights to restrict competition, more and more serious. The 20th century throughout Europe in a 70's "oil crisis", but also makes economic slowdown in Europe unemployment surge at a time when the four new countries to join further exacerbated the economic imbalances within the Community, a serious rise of trade protectionism in Europe, to cut into the economy fall apart facing the crisis of European integration. In this case, European Commission and the European Court of Justice began to expand the scope of EC competition law to strengthen restrictions on competition between Member States to crack down on behavior. In the field of intellectual property antitrust, European Commission noted that: (1) According to the EC Treaty Article 85, paragraph 1, identification of intellectual property rights provisions of the license agreement restricts competition among member countries if the damage trade, is illegal. and in accordance with Article 85 EC Treaty, the provisions of paragraph 3, for exemption The license agreement must be registered to the European Commission. (2) According to Article 86 EC Treaty provides that if the abuse of intellectual property rights of all people with such a dominant market position, and the members of this behavior will damage between trade, is illegal. through the European Court of Justice case in 1968, Parker Davis (ParkeDavis), 1974 年 Greenwood Farm, Inc. v. Sterling Policy Act case (Centrafarm vs. Sterling), and 1981 Mexican Park v. Sidi incidence (Merck vs. Stepher) established the "right to exist and to distinguish the right to exercise the principle of" and "exhaustion of rights principle." These regulations indicate that, despite the existence of intellectual property legislation within the Member States things, but the exercise was related to the Community interest, the Community must be run under the anti-monopoly system.

3. Expansion of European integration, in-depth development period (in the late 20th century, 80 - present), convergence of national competition law, to meet the financial needs of EU enlargement, the European Union to develop the collective intellectual property and antitrust immunity system in batches and relax Anti-monopoly control of intellectual property
The 20th century, late 80s, European integration has entered an unprecedented period of rapid development. By 1993, Member States have removed the visible, invisible barriers, to achieve the goods, persons, services and capital flow of the four European The completion of the common large market In 1986 <<Single European Act>> through, so that the form of European political integration and recognition, cooperation among Member States and the separation of powers between the Community and the Member States the principle was established. and as a , two years to carry out anti-monopoly law at Community level, the majority are active members of the EC competition law with reference to the template, the establishment of corresponding national competition law, and the establishment of the corresponding legislative body. Therefore, this period Community level, the main intellectual property antitrust pressure from the Member States is no longer the state of their own for the array, but how to improve the integration of the EU's competitiveness on the world stage. In the past cases in the case of registration of intellectual property licensing license has obviously anachronistic. To improve efficiency, the European Commission in 1996 adopted a <"Technology transfer agreements collectively apply the EC Treaty Article 85, paragraph 3, No. Ordinance No. 240/96>>, by technology classification of the transfer agreement, to achieve the collective licensing of intellectual property rights of such exemption.

With the further development of European integration has to achieve in the EU the largest single increase in history --- an expanded from 15 countries to 25 countries in 2004, to improve the EU ability to adapt to the new economic environment, the European Commission further modify the <<No. 240/96 Ordinance No.>> by the <"Technology Transfer Agreement Exemption Regulation 772/2004 bulk Ordinance No.>>, and gives the <" On the technology transfer agreement Guide>>. The new regulations on technology transfer agreements exempted from the provisions of the standard, replacing the past practice of classification agreement, making the decision criteria more flexible. This approach in fact relaxed the antitrust laws applicable in the field of intellectual property. makes more products to the EU more competitive on the international stage.

(C) The United States European Union anti-monopoly legislation of intellectual property rights evolution of value orientation
From the above the United States, European Union anti-monopoly legislation of intellectual property value orientation of the evolution of history, we can see that the value of intellectual property the choice of anti-monopoly legislation in fact does not exist an absolute scale.

With the U.S. intellectual property in the United States antitrust development of capitalism and the free formation of monopolies, has gone through the strengthening of intellectual property protection, intellectual property exempted from antitrust review, to strengthen anti-monopoly regulation of intellectual property legislation changes in values, and when U.S. as the world super power after the intellectual property rights, the domestic law of its review of the import trade, the implementation of American-style to the world of high standards of protection of intellectual property, while other countries kept silent antitrust issues raised. these legislative Value change and development stage of the U.S. economy and the economic forces of change are closely related.

Unlike the U.S. the EU, as inter-governmental organizations, intellectual property rights of members of legislative power, the integration level of use of a unified anti-monopoly system. When faced with 70s of last century, "European Sclerosis" serious challenges during the integration, European Commission and the European Court of Justice, and actively strengthen community anti-monopoly law by means of the Member States to regulate the exercise of intellectual property rights, to the purpose of maintaining the basis of European unity. And when the deepening of European integration took to the road of development, the number of members Meng growth, national and EC competition law has been established in accordance with anti-monopoly regime, the EU began to relax on the concentration of anti-monopoly control of intellectual property. Thus, the EU anti-monopoly legislation of intellectual property rights not only reflects changes in the various stages of European integration economic needs, more importantly, maintenance of European integration has played a key role in joint and coordinated.

As the world's most advanced anti-monopoly legislation of intellectual property experience in the United States and the European Union, although one is a sovereign state, one international organization, despite their anti-monopoly in the intellectual property rights when there are changes in attitude, but it is by no means can be erratic through the. whether the intellectual property be protected, that is, whether to give such a private right to give that right degree of protection, which allows such a proprietary interest in how the expansion of community, the key is that the political entity in the economic development At that time the international economic level and the balance of power, and ultimately serve the fundamental interests of the entity. the United States, Europe and anti-monopoly legislation of intellectual property on the values ​​of changes in this series was in full compliance with their internal and external features of the social environment and local economy characteristics, they are the basis of these "native", "age" of the characteristics of a national or regional interests as a guide, to achieve values ​​in the legislation a "dynamic" balance.

Links to Research Papers Download http://www.hi138.com three times after the TRIPs intellectual property antitrust issues facing China's domestic and international situation
(A) of the TRIPs agreement has been given the international: economic globalization under the requirements of international intellectual property protection can avoid high
WTO under the framework of <<with the TRIPS Agreement>> (TRIPs), General Agreement on Tariffs and Trade Uruguay Round results. TRIPs agreement of all members of the main objectives is to promote harmonization of intellectual property legislation, namely the World Trade Organization members, regardless of social development and economic and technical level of the state, protection of intellectual property to reach at least the unity of TRIPs establish "minimum standards." uniform standard reflects the high degree of intellectual property, more and more to take into account and refer to the developed national requirements and practices. so the "minimum standards" by no means low standards, it is in many ways beyond the developing countries, technological, economic and social development stage, to the previously achieved only in developed countries, protection requirements. TRIPs then maintain this standard also provides a detailed enforcement measures, provides administrative and judicial procedures, in particular the evidence, injunctions, damages, and anti-counterfeiting measures and border to make provision for penalties for violations.

Interestingly, the international protection of intellectual property rights, as today's most important provisions, but not by international organizations specializing in intellectual property --- World Intellectual Property Organization (WIPO) to make. And the reason is included in the relevant intellectual property issues GATS framework, not so much a reason for trade, as it is developed countries, especially the United States an important means of strengthening competitiveness [7]. This led in the developed countries under the TRIPs regulations, emphasis was placed on intellectual property rights " protection ", rather than on the effective use and development of intellectual property. Developed countries can also take advantage of the retaliation provisions of the GATT, the countries mainly the IPR protection for vengeance. TRIPs through, in essence, developed countries products from developing countries to strengthen intellectual property protection as a bargaining chip for access to developed country markets, intellectual property protection in the force developing countries to make concessions in order to exchange for other such as agriculture, textiles and other areas of the right of access to developed countries the process. But In the framework of the WTO multilateral system, in the field of intellectual property damages, compensation can be found in other areas, so compared with the bilateral system, TRIPs is not so evil, [8].

In order to better integrate into the world economic arena, China has experienced 15 years of tough, "WTO" negotiations. To exclude the "WTO" obstacles, conducted several years of stand Fa Xiufa activities: development of a <<VLSI Design protection regulations>> modified the three major intellectual property law and its implementing regulations, clearing the way of relating to. According to the requirements of TRIPs, the intellectual property legislation to expand the scope of the object to increase the categories of intellectual property rights, the introduction of some of the previous legislation had not been involved in the civil legal system and protection, judicial protection and scope of the field also will be expanded to cover the TRIPs Agreement and the rights of all categories of intellectual property objects. At present, China has basically achieved with the TRIPs in fully aligned to raise the level of IPR protection in China to an unprecedented level. In addition, in culture, post-TRIPs era the world has formed a strong intellectual property protection of environment, people feel "not to strengthen intellectual property rights to hinder their economic development, will isolated from the world. "Thus, the current level of IPR protection in China is no longer the way to go back.

(二)国内反垄断法缺失:知识产权高保护标准带来知识产权滥用无以规范
2006年我国PCT申请量只有3900余件,仅占全球总量的2. 6%,仅是世界排名第一的美国的PCT申请量的1/20.而这些专利申请经过审查,真正能够获得授权的就更少了[9].TRIPs设定的如此之高的知识产权保护标准,实质上保护的是以美国高新科技公司为代表的知识产权霸权企业的利益.据新华社消息,自入世以来到2006年,从DVD、彩电、摩托车到数码相机、MP3芯片、汽车、电信设备,我国企业因知识产权纠纷引发的经济赔偿累计超过10亿美元,有些纠纷对有关产业甚至形成毁灭性打击[10].因此,我们必须高度重视知识产权垄断行为带来的危害.目前,我们遭遇到的知识产权垄断行为(滥用知识产权限制竞争的行为,既包括知识产权不正当竞争行为,也包括知识产权垄断行为.在此仅分析知识产权垄断行为.主要有:
1.利用专利池收取垄断利润
专利池(patentpool),是一种专利的联合形式,是一种由多个专利权人组成一个专利许可交易平台.在这个平台上,专利权人之间可以进行横向许可,也可以统一的条件向第三方许可.如能良好利用,专利池本能消除专利实施中的授权障碍,降低单个授权的交易成本,然而,若缺乏相应规范制衡,专利池则往往被一些企业在包含核心技术的专利池中收取统一的高昂许可费,或者捆绑一些过期专利、边缘性专利、非必要性专利,增加被许可人不必要的成本负担.自1999年6月,日立、松下、JVC、三菱、东芝、时代华纳组成国际6C联盟,通过"专利池"(patentpool)的构建对DVD专利进行"联合许可"后,3C、杜比、以及美国MPEG专利技术管理公司等专利联盟亦先后向中国DVD企业提出专利使用费要求.由于核心技术掌握在他人手中,中国作为世界上DVD的最大生产国,每年不得不向这些国际专利联盟缴纳高达上亿元的巨额专利使用费.中国企业出口一台售价为32美元的DVD只能赚取1美元利润,而交给国外企业的专利费却超过零售价的50%.以与飞利浦的协议为例,购买的是DVD专利池"一揽子"协议中3000来项专利,而其中有些技术根本不是专利技术,有些专利技术已经过了保护期限,有些技术并不是中国DVD企业生产所需要的,真正有用的不到10%.而当DVD市场逐渐成熟,DVD利润空间日趋缩小时,DVD专利使用费却有增无减,导致有些DVD厂商利润甚至不够交专利费.几经谈判无果,我国曾红火一时的DVD行业全面陷入了难以为继的境地.由于专利费是按品牌收取的,为了规避专利费,很多企业可能会在利润空间缩减的情况下直接去做贴牌加工生产,从而导致中国失去自己的品牌.值得关注的是,这次国外企业对中国DVD企业开征专利费还只是个开始,更大的动作还在后面.据相关人士透露,MPEG专利技术管理公司旗下的MPEG-4、H.264、DVB-T等专利组合也都将展开对中国家电产品的专利收费谈判.这些专利组合覆盖范围很广,涉及数字电视、CRT电视、MP3、影音传输等各个领域.国内知识产权使用企业如今已经面临着来自国外知识产权持有者的巨大生存性挑战.

2.以"私有协议"的专利标准阻碍后继创新者
专利标准增进了技术及产品的兼容性和互通性,减少了消费者面临的技术风险,加速了新技术的普及,因而被广泛运用.而"私有协议"的专利标准,是指非经国际或国家标准化组织认定,而事实上广泛应用的非公开的事实标准."私有协议"专利标准最容易形成在新兴科技领域,由于国际及国家标准认定的滞后性,因此往往被少数技术先发企业占领.一旦用户对这一标准形成事实习惯,则后续产品只有与原标准形成匹配才可能被接受,而由于这些"私有协议"最初形成于企业内部,其细节和关键内容不对外公开,因此一旦这种"私有协议"形成了这一新兴行业的事实标准,就容易变为先发企业封闭市场的工具,从而阻碍后继创新者跟进.2003年美国思科诉中国华为就是这样一个典型的例子.为了打击华为在通信设备领域的快速发展,思科对其提起了长达77页的起诉书,指控华为盗用IOS源代码、盗用思科技术文件、盗用命令行接口,以及侵犯其专利权,并相应提出了多达21项的诉讼请求,涵盖了从版权、专利、商标到不正当竞争等知识产权的几乎所有领域.在长达两年的诉讼中,华为开始一直处于不利地位,直到华为真诚地让美国代理律师相信华为只是一个后继创新者而不是抄袭者的时候,在美国应诉的华为才最终在律师的帮助下,抓住思科在业内的"私有协议"标准问题,指出思科的私有协议造成了用户严重依赖单一供应商的局面,阻碍了其他企业公平竞争和自由发展的权利,最终迫使思科与其达成和解结案.耐人寻味的是,如果此事发生在对知识产权垄断缺乏规制的中国,那么结果也许就不得而知.

3.价格歧视、掠夺性定价、拒绝许可、搭售等其他滥用知识产权市场优势地位行为侵害消费者利益,排挤竞争对手
价格歧视,是指针对不同的客户实行不同的、与成本无关的价格上的差别待遇.如当年微软在销售W indows98时,在中国大陆市场零售价则为1980元人民币,其在美国的售价约合800多元人民币,在日本合600-1200元人民币,Office2000测试版在中国售价约200元左右,而在国外则免费赠送,微软给中国大厂商的W indows98预装许可费为300元人民币左右,中小品牌PC厂商则达690元,而在美国甚至可低到100元人民币.而当微软在中国的抗议声中逐渐放低了价格时,新的价格歧视又层出不穷.2005年初,苹果MacMini在美国的售价最低为499美元,折合人民币在4100元人民币以内,而在中关村最便宜的MacMini销售价格在2005年初一度达到5900元,目前为4900元.

掠夺性定价,即优势企业为了排挤竞争对手,而在一定时期、一定市场以低于成本的价格销售产品.掠夺性定价,是一种低于成本的低价倾销手段,虽然短期内有益消费者,但一旦其他竞争对手被消灭,则会出现垄断市场的局面,最终侵害到消费者以及社会利益.如微软公司为了消减中国国产软件WPS,在WPS97发布前夕,匆忙推出97元超低价格的Word97版本,与其在中国通常表现出的垄断高价和价格歧视形成了鲜明的对比.美国诺顿杀毒软件当年为了快速占领中国市场,也进行了其他公司任何品牌的杀毒软件,另加59元就可换取最新的诺顿软件产品的促销,而其原本在中国售价为280元.

拒绝许可,即知识产权权利人拒绝授予竞争对手合理的使用许可.当年,我国一些DVD生产企业就曾反映6C联盟有拒绝知识产权许可的情况.而美国思科公司对其拥有专利权或商业秘密的"私有协议"不授权给任何其他企业,阻止了不同企业设备之间的对接,人为造成了技术性壁垒,使得通讯产品的招标过程中,其他竞争者难以对它构成实质竞争.

搭售,即在知识产权许可中捆绑非必要产品或服务,并要求对方付费的行为.在专利池的一揽子销售中,这种情况比比皆是.

以上这些知识产权垄断行为已经严重侵扰到我国经济的正常秩序.一些学者已经意识到国外知识产权"狼来了"的严重性,并试图通过申请知识产权无效等手段来对抗国外"知识产权入侵",但面对薄弱的国内技术基础及其庞大的国外知识产权结池现象,这种做法无异杯水车薪(在中国DVD企业面对生存危机的时候,以北京大学法学院张平教授为牵头的国内五位知名法学院教授曾向国家知识产权局专利复审委员会提出3C专利池中的飞利浦一项专利权无效宣告请求,最后以和解结案.但与飞利浦的此次和解并没有促使飞利浦降低其专利使用费,也没有能促成其他专利持有人减少其收取的专利费..我国知识产权反垄断问题已经迫在眉睫,然而我国的反垄断法在此方面却是极不完善的.2008年我国出台了历史上第一部反垄断法,其中第55条对知识产权垄断行为做出了原则性规定:"经营者依照有关知识产权的法律、行政法规规定行使知识产权的行为,不适用本法,但是,经营者滥用知识产权,排除、限制竞争的行为,适用本法."除此之外,则更无相应的细则与行动指南.垄断行为本身与市场因素相关,具有不稳定性的特点,而其遇上无形性的知识产权问题则变会得更加复杂.一旦出现知识产权垄断行为,将会面临无法可依的困境.

四、当代我国知识产权反垄断立法的价值取向的确定
法律是对利益的划分,任何法律都有其特定价值取向,而执行法律也都是为了达到这一价值取向而做出的一系列行为和措施.知识产权与反垄断法的立法价值取向的确定,将对知识产权行为的边界、行为的方式、知识产权反垄断的程度以及执行程度产生确定性的影响.加之,反垄断规制本身的抽象性与不确定性,知识产权反垄断立法价值的确认将在很大程度上影响到知识产权行为的行使.那么,我国的知识产权反垄断的立法价值取向又该如何定位呢?
知识产权反垄断问题是基于知识产权垄断性的滥用行为出发的,因此研究这个问题的前提必须考虑我国目前的知识产权保护水平.2005年北京财富全球论坛上,我国国家知识产权局原局长王景川在评价知识产权制度的作用时曾指出,历史已经表明,只有知识产权的保护范围、保护方式、保护水平,适应国家当时的生产力发展水平,并能随着未来的发展需要而变革,才能真正促进科技创新、经济增长、社会进步,否则,会产生负面作用[11].由于每个国家和地区的经济发展水平不一致,简单趋从同一知识产权保护标准会造成对国家利益的侵害.中国作为一个最大的发展中国家,经济底子薄,技术相对落后,按理来说高标准、宽范围的知识产权保护是不利于社会经济的整体提升的.巴黎公约和伯尔尼公约也认可了这种知识产权制度适当尺度以及对等原则的必要,允许在设计知识产权制度时有相当大的弹性.然而,随着TRIPs协议的诞生,这种弹性已被去除得所剩无几.现在,一个国家已经不可能再完全按照自身发展采用的相应的知识产权规制策略.根据TRIPs协议的规定,我国的知识产权保护标准不但事实上无法降低,而且要持续地保持与TRIPs的要求相一致.而由于利益的需要,任何权利都是具有扩展性的,知识产权亦不例外.这种高、强而广泛的知识产权保护标准,已经产生前文所述的权利垄断问题.与设立知识产权制度的初衷相反,这种知识产权垄断行为已成为了知识产权输入国谋求垄断利润的工具,不但无法起到鼓励本土创新的目的,反而会压制后续创新跟进,使得我国经济技术大量依赖国外进口,构成对国家经济安全的威胁.

然而,全球化是一种不可逆转的趋势.知识产权的世界接轨亦属历史的必然,再谈论降低我国知识产权保护问题已属毫无意义.郑成思曾指出,降低我国目前知识产权保护立法或批评我国不应依照世界贸易组织的要求提高知识产权保护水平,属于没有历史地看问题……这样的结果就是在竞争中"自我淘汰"出局[12].不过,为避免在全球化浪潮中"自我淘汰",并不意味着要"自我牺牲".2008年6月5日国务院公布的<<国家知识产权战略纲要>>在"序言"部分指出,我国目前的"知识产权滥用行为时有发生",所规定的战略重点之一就是"防止知识产权滥用",并要求"制定相关法律法规,合理界定知识产权的界限,防止知识产权滥用,维护公平竞争的市场秩序和公众合法权益".可见,国家已经从制度战略的高度,看到了我国知识产权面临的严峻形势,并给我们指出了方向.

我们应当将制度的设置看成一个宏观的体系.当面临与国情不相适应的、而又无法规避的知识产权高标准保护问题时,利用其他制度以限制知识产权滥用行为的行使,驱其利避其害,将对知识产—102—权的保护建立在成熟的市场经济体制规范之内,才是解决问题的关键.而这一"相关法律法规",首当其冲的就是知识产权反垄断制度.我国反垄断法却刚刚制定,其在知识产权反垄断问题上也仅有提示性的规定,这应该成为我们今后立法的重中之重.通过对知识产权垄断性滥用行为的规范,排除国外知识产权霸权力量对市场竞争的破坏,还原我国跟进型创新的生存空间,降低社会知识产权运用成本,从而将我国经济推向一个新的高度.

进入21世纪以来,曾有学者以美国国内经济界强烈抨击反垄断法拆分微软"乱来"为依据,强烈建议我国不要建立反垄断法(经济学者薛兆丰曾在2000年5月12日<<南方周末>>中发文"反垄断法有点乱来"中提出,除了行政垄断需要反垄断以外,其他行为反垄断则值得商榷..这实质是一种"东施效颦"的做法———盲目效仿他国具体行为,而不考虑自身经济条件和现实状况.在我国目前内部技术落后,外来知识产权力量强大的情况下,我国知识产权反垄断法立法价值的核心定位应当是以社会整体利益为出发,大力强化知识产权反垄断规制,以"强反垄断手段"对抗"强知识产权保护标准".打个形象的比喻,如果将目前按TRIPs要求提高的知识产权保护程度看成是中国经济技术进步的"一条腿"的话,强化知识产权反垄断规制则应当是与之对应的"另一条腿".知识产权保护的"腿"越长,知识产权反垄断的"腿"就应该越长,否则,知识产权保护得越厉害,知识产权反垄断规制得越弱,中国经济技术发展摔跟头的危险性就越大.而今后,随着我国自身知识产权国力的增强,在国际经济对比中居于优势的时候,则可以在立法价值取向上做出"动态平衡"的调整,转而以保护知识产权人利益为出发,弱化知识产权反垄断规制.此是后话.




Notes:
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[2]王先林.知识产权与反垄断法———知识产权滥用的反垄断法问题研究[M].北京:法律出版社, 2001. 84-85.

[3] [美]汉密尔顿,杰伊,麦迪逊.联邦党人文集[A].北京:商务印书馆, 1980. 220.

[4] WaltonHamilton. Patents and Free Enterprise[M]. GovernmentPrintingOffice. 1941.

[5]王先林.反垄断执法与知识产权保护之间的平衡———美国<<反托拉斯执法与知识产权:促进创新和竞争>>报告述评[J].学术论坛, 2007, (6).

[6]薛兆丰.反垄断法有点乱来[N].南方周末, 2000-05-12.

[7]郑海东.从乌拉圭回合看美国的知识产权战略[J].复旦大学学报•社会科学版, 1995, (6).

[8]国家知识产权局学术委员会.知识产权研究与实务[A].曹阳.TRIPs与发展中国家的知识产权[C].北京:知识产权出版社, 2006. 36.

[9]李启章,闫文锋,刘仁.田力普要求各地积极实施知识产权战略[N].中国知识产权报, 2008-01-30.

[10]张宗堂,邹声文.我国企业因知识产权纠纷引发赔偿累计逾10亿美元[ EB/OL]. www. gov. cn. 2006-04-27.

[11]王景川在<<财富>>全球论坛上就知识产权问题发表演讲[ EB/OL]. www. sipo. gov. cn, 2005-08-03.

[12]国家知识产权战略制定工作领导小组办公室.挑战与应对(国家知识产权战略论文集)[A].郑成思.信息、知识产权、与中国知识产权战略若干问题[C].北京:知识产权出版社, 2007. 转贴于 免费论文下载中心 http://www.hi138.com