反专利权滥用法律规制研究

专利权人或独占实施的被许可人不正当行使其权利、不实施其专利、利用其优越地位不正当地限制交易、或采取不公正的交易方法造成他人利益或公共利益受到损害的,构成专利权滥用。我国法律、法规没有对专利权滥用行为进行界定,强制性法律规范不健全,缺乏具有操作性的救济措施,对其规制的措施尚不够有力。同时执行机构多元化,执法程序不够完善,导致执法不统一。在专利权滥用法律规制模式上,我国宜采用二元制的规制模式。

The Research of Regulation against Patent Right Abuse

If the patentee or the licensee of exclusive exploitation of patent exercises his patent right improperly,does not implement his patent or makes use of his advantageous position to limit the transactions improperly or adopt unfair methods of the transactions,which cause damage to other people＇s interests or public interests,their actions have constituted the patent right abuse.However,our laws and regulations have not defined the abuse of patent right and the compulsory norm of law is insufficient.Besides,the laws and regulations regulating patent right abuse lack maneuverable remedial measures and the regulatory measures are not yet forceful.At the same time,the law enforcement agency is also diverse and the law-enforcing procedure is not perfect,giving rise to the disunity of the system of law enforcement.With the modes of regulation against the abuse of patent right,it is the best choice to establish a dual regulatory mode for China.