在华跨国公司知识产权滥用的反垄断法分析

伴随着跨国公司在中国市场上利用知识产权优势加强其竞争地位的过程,一些涉嫌滥用知识产权的行为也不同程度地表现出来了,并且往往与限制竞争或者垄断行为联系在一起.这尤其突出地表现为拒绝许可、搭售、价格歧视、掠夺性定价、过高定价等方面.我国亟需建立和完善以反垄断法为核心的规制包括在华跨国公司在内的知识产权滥用的法律制度.     

警惕英特尔

随着跨国公司直接投资速度的加快,其负面影响不容忽略,其中跨国公司利用手中的专利垄断市场的苗头也日益显现。国外立法针对跨国公司知识产权滥用而形成的垄断状态或垄断行为进行反垄断法上的规制。一般而言,反垄断法所规制的垄断可以分为垄断状态和垄断行为两大类。垄断状态是指在相关市场中由于存在一定的市场结构而产生市场弊端的状     

浅谈反垄断法与知识产权保护

产生于文艺、科技领域内的知识产权保护,并非一般意义上的垄断;知识产权的滥用,是导致反垄断法意义上的垄断的主要原因之一;知识产权保护和反垄断立法在价值目标一致的基础上,共同发挥着规制权利滥用的作用。     

实施国家知识产权战略与规制知识产权滥用

中国目前正在制定和实施国家知识产权战略，规制知识产权滥用行为是其中的一项重要内容。规制知识产权滥用与保护知识产权是不矛盾的。中国目前的知识产权滥用主要表现为跨国公司滥用其优势地位实施限制竞争的行为，特别是拒绝许可、搭售、价格歧视、掠夺性定价和过高定价等。为此，急需建立和完善以反垄断法为核心的规制知识产权滥用法律制度。     

浅谈反垄断法与知识产权保护

产生于文艺、科技领域内的知识产权保护,并非一般意义上的垄断;知识产权的滥用,是导致反垄断法意义上的垄断的主要原因之一;知识产权保护和反垄断立法在价值目标一致的基础上,共同发挥着规制权利滥用的作用。     

知识产权案件中的反垄断思维——从技术型搭售展开的分析

目前。在全球范围内,知识产权的反垄断问题是一个政府与民间、学术界与业界普遍关注的热点问题。在中国。反知识产权垄断更是被赋予抵制跨国公司滥用知识产权、保护民族经济发展的宏大使命。即将于今年8月1日实施的《反垄断法》第55条对知识产权垄断问题作了一条原则性的规定,该条规定如何在司法中得到适用,备受     

WTO、经济全球化、知识经济与我国反垄断立法关系研究

我国新世纪的反垄断立法 ,应当充分关注WTO、经济全球化和知识经济的发展要求 ,并善于从中吸取力量、营养和经验 ,加快立法步伐 ,加大反对行政垄断的力度和进展 ;应当奉行新思路 ,摒弃结构主义 ,贯彻效益优先原则 ,将制裁的重点设在滥用优势限制竞争造成效益低下的垄断行为上 ,并将反对国际垄断涵盖其中 ;应当在规定“适用除外”制度加强保护知识产权的同时 ,努力创设足以对滥用知识产权限制竞争的垄断行为实行有效监督和制裁的新制度。     

滥用知识产权的反垄断法律规制

知识产权是法律赋予的一种合法垄断权,但一旦被滥用,则可能产生排除、限制竞争后果,构成垄断行为。滥用知识产权垄断行为不是一种独立的垄断行为类型,而是分别归于垄断协议、滥用市场支配地位或是經营者集中,因此反垄断行为认定通常遵循本身违法原则和合理分析原则,也同样适用于滥用知识产权垄断行为的具体认定。在知识产权领域的反垄断规制中,合理分析原则的应用范围较本身违法原则更广,居于更为重要的地位,具有一般原则的性质。①目前,美国、欧盟、日本等国家都颁布和制定了有关知识产权垄断的指南或规章,并以本身违法原则和合理分析原则为基础,采取或遵循一种分类规制的原则思路对滥用知识产权垄断行为的认定作出细化规定。我国《反垄断法》第五十五条关于知识产权垄断行为的规定较为原则,极有必要借鉴其他国家和地区的先进做法,研究制订专门的、确定性较高的执法指南或者规则,并将分类规制的思路和方法引入滥用知识产权垄断行为的规制体系。     

知识产权的竞争法规制——保护与限权并行不悖——以微软案件为视角

微软垄断诉讼案引起了法学界、司法界和经济学界对反垄断法、垄断与竞争关系广泛地反思和争论,特别是微软公司在知识产权制度的外衣下滥用权利,排除、限制竞争的行为更值得关注。本文通过对微软案件的分析,从法律上对知识产权滥用行为进行有效的规制。     

从德先诉索尼案看知识产权滥用的反垄断规划

从介绍索尼的行为谈起,叙述了跨国公司近年在华不断实施滥用知识产权行为的普遍现象.结合德先诉索尼案件中反映出的问题,指出当前中国企业在国内市场上面对跨国企业滥用知识产权行为束手无策的困境.最后提出应当从反垄断方面对知识产权滥用进行规制,加快我国反垄断法的颁布实施.     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.     

Monks Who Have Sex: Pārājika Penance in Indian Buddhist Monasticisms

In the study of Buddhism it is commonly accepted that a monk or nun who commits a pārājika offence is permanently and irrevocably expelled from the Buddhist monastic order. This view is based primarily on readings of the Pāli Vinaya. With the exception of the Pāli Vinaya, however, all other extant Buddhist monastic law codes (Dharmaguptaka, Mahāsāṅghika, Mahīśāsaka, Sarvāstivāda and Mūlasarvāstivāda) contain detailed provisions for monks and nuns who commit pārājikas but nevertheless wish to remain within the saṅgha. These monastics are not expelled. Rather, they are granted a special status known as the śikṣādattaka. In this paper I explore the rules. concerning pārājika penance and the śikṣādattaka with specific regard to monastic celibacy. Given that five out of six extant law codes recognise this remarkable accommodation to the rule of celibacy, I argue that we must look to Vinayas other than the Pāli Vinaya if we are to arrive at a nuanced and representative view of Indian Buddhist monasticism.

Grant me chastity and continence, but not yet. Augustine of Hippo (354–430 C.E.)

     

Family breakdown and the ‘Welfare Child’ in 19th and 20th century Britain

This article traces new cycles of interest in past children as distinct from past childhood. Recent work highlighting that a conceptualisation of childhood existed even in periods with few written records closes the chapter begun by Philippe Ariès in 1960. Instead, there has been a new surge of interest in children on the edges of family life, as well as children in similarly liminal positions between the worlds of adults and children: runaways, delinquents and orphans. Several themes in the literature are identified, based on the conflicting ideas of ‘body/mind’, ‘victim/threat’, ‘needs/rights’. It is noted that researchers are using more imaginative ways of reaching the lived experience of children than the family or institutional framework, and that an increasing link is drawn between historical and modern concerns such as child abuse and the care of ‘at risk’ children.     

Vedic Language and Vaiṣṇava Theology:Madhva’s Use of Nirukta in his Ṛgbhāṣya

This article explores the way in which Madhva (1238–1317), the founder of the Dvaita Vedānta system of Hindu thought, reformulates the traditional exegetic practice of nirukta or “word derivation” to validate his pluralistic, hierarchical, and Vaiṣṇava reading of the Ṛgvedic hymns. Madhva’s Ṛgbhāṣya (RB) is conspicuous for its heavy reliance on and unique deployment of this exegetical tactic to validate several key features of his distinctive theology. These features include his belief in Viṣṇu’s unique possession of all perfect attributes (guṇaparipūrṇatva) and His related conveyability by all Vedic words (sarvaśabdavācyatva). Such an understanding of Vedic language invokes the basic nirukta presupposition that words are eternally affiliated with the meanings they convey. But it is also based onMadhva’s access to a lexicon entitled Vyāsa’s Nirukti with which his critics and perhaps even his commentators seem to be unfamiliar.While the precise status of this text is the subject of ongoing debate, Madhva’s possession of special insight into the sacred canon is established in part by his unique claim to be an avatāra of the wind god Vāyu and a direct disciple of Viṣṇu Himself in the form of Vyāsa₁. Thus, Madhva’s use of nirukta invokes his personal charisma to challenge not only conventional understandings of the hymns but traditional exegetic norms. Madhva’s provision of an alternative tradition of nirukta provoked sectarian debate throughout the Vijayanagara period over the extent to which one could innovate in established practices of reading the Veda. Articulating the Veda’s precise authority was a key feature of Brahmin debates during this period and reflects both the empire’s concern with promoting a shared religious ideology and the competition among rival Brahman sects for imperial patronage that this concern elicited. By looking at how two of Madhva’s most important commentators (the 14^th-century Jayatīrtha and the 17^th-century Rāghavendra) sought to defend his niruktis, this article will explore how notions of normative nirukta were articulated in response to Madhva’s deviations. At the same time, however, examining Madhva’s commentators’ defense of his niruktis also demonstrates the extent to which Madhva actually adhered to selected exegetic norms. This reveals that discomfort with Madhva’s particular methods for deriving words stemmed, in part, from a more general ambivalence towards this exegetical tactic whose inherent open-endedness threatened to undermine the fixity of the canon’s very substance: its language. Vyāsa’s Nirukti is one of several ”unknown sources” cited in Madhva’s commentaries whose exact status continues to be debated. Some scholars (e.g. Rao, Sharma, Siauve) maintain that these texts are part of a now lost Pāṅcarātra tradition that Madhva is attempting to preserve. This may be true for many of these citations. However, in addition to claiming to be both an avatāra of Vāyu and Viṣṇu-as-Vyāsa’s student, Madhva states in several places (e.g., VTN 42, RB 162) that the canon has suffered loss during transmission and that only Viṣṇu can reveal it in its entirety. Thus, it is possible that Madhva intends texts like Vyāsa’s Nirukti to be viewed as part of an ongoing and corrective revelation, a notion that is compatible with many Vaiṣṇava traditions (Halbfass, 1991: 4).     

Policing Outlawed Desire: ‘Homocriminality’ in Beat Spaces in Australia

Drawing on interview data of gay men who have had their behavior in public spaces scrutinised by agents of the law for signs deviance, this article explores the historical characteristics of police animosity towards such conduct in Australia. This entails examining encounters between police and gay men who pursue desire in ‘beat’ (or ‘cottage’ to the use the UK term) spaces. Exploring why these outlaw gay male subjects are so abject and troubling to the law, the discussion documents how law’s desire to regulate gay men plays out in the masquerade of ‘plain-clothes’ agent provocateur operations where police entrap gay men by mimicking gay bodily appearances, gestures and mannerisms. This article also examines how police regulation of gay desire functions as a form of violence that delimits expressions of same sex desire in public spaces. A key theme that underpins the analyses in this paper is that the policing of desire in ‘beat’ spaces helps produce qualities of illicitness and dangerousness and that this, in turn, fuels the circuit of desire at play between gay men and agents of the law.

Interrupting the Myth of the <Emphasis Type="Italic">Partage</Emphasis>: Reflections on Sovereignty and Sacrifice in the work of Nancy,Agamben and Derrida

Agamben traces the bio-political essence of modern politics to the non-sacrificial killing of Homo Sacer in Roman law. Nancy, on the other hand, links the history of Western politics to the fundamental logic of sacrifice in Western metaphysics. He nevertheless contemplates the possibility that Western societies may finally have arrived at the threshold of a non-sacrificial existence. Derrida seeks to resist the sacrificial logic of Western metaphysics and politics, but nevertheless appears to accept it as an irreducible fact of human co-existence. Unlike Nancy, he envisages no actual or actualised beyond beyond the realm of sacrificial metaphysics and politics. He thus can be said to interrupt Nancy’s ‘myth’ of a non-sacrificial partage. This article compares these three philosophical stances in the hope of throwing more light on the role of sacrifice in the law and politics of our time. Professor of Law, Rand Afrikaans University. Conversations with Ann van Sevenant, Carol Clarkson, Louise du Toit, Peter Fitzpatrick, Costas Douzinas and Adam Thurschwell gave impetus to many of the themes developed in this article. Concomitant shortcomings and inaccuracies, as always, are mine.