摘要
Our understanding of the abuse of intellectual property rights （IPR） should be based on a thorough clarification of the relationship between the exercise of such rights and their abuse. Although the two are related, they definitely cannot be simplistically equated. This is because exercising such rights outside the sphere of IPR is not an abuse of IPR. Whether the act of exercising IPR on an exclusive basis constitutes an abuse of IPR must be determined by whether it is legitimate. Inappropriate exercise of IPR is essentially different from abuse of IPR. To prevent acts of IPR abuse, we need to think in terms of institutional rationality. Such thinking .is twofold. On the one hand, it involves resolving conflicts of interests arising from IPR use on the basis of legal justice and making correct judgments about conflicts of interests and legal justice, so as to strike a balance between the satisfaction of interests and public order and security. On the other, it encourages us to devote more attention to the social function of IPR on the basis of private rights. Modem societies are not only obliged to promote the cause of protecting private rights; they should also place greater emphasis on the social function of rights, and especially on enhancing the relationship between social development and the social function of IPR.
对知识产权滥用的认识,应当构建在清晰梳理知识产权行使行为与知识产权滥用行为之关系的基础上。它们两者之间虽有联系,但决然不能简单等同,因为超越知识产权权利范围行使权利的行为不是滥用行为,知识产权垄断行使行为是否构成滥用需要依其是否具有正当性而做出判断,知识产权不当行使行为与滥用行为有着本质不同。防止知识产权滥用,需要制度理性的思考。防止知识产权滥用的制度理念,一是在法律正义的基础上解决知识产权的利益冲突,对利益冲突与法律正义作出正确的判断,在利益实现与秩序安全之间寻找衡平点;二是在私权基础上关注知识产权的社会功能。现代社会不仅需要高扬私权保护的旗帜,也需要更多地关注权利的社会功能,尤其需要关注社会发展与知识产权社会功能的强化之间的关系。
