美国知识产权反垄断诉讼中专利范围测试规则的适用及启示——基于“Schering V.S. Upsher”案实证分析

“Scope of the Patent” Test in the U.S. and its Enlightenment to China: Based on the Empirical Analysis of "Schering V.S. Upsher Case"

知识产权制度是一把双刃剑,它既能激励创新,亦可能因滥用垄断权而限制自由竞争,这在医药行业尤为显著。专利药企业若滥用其专利权妨碍、限制仿制药上市,将直接影响社会公众健康福利。以美国专利反向支付协议反垄断诉讼判定规则——专利范围测试规则为研究对象,通过剖析其适用现状及最新动向,为完善我国知识产权反垄断制度提出可行性建议。

Intellectual property policy is a double-edged sword which can not only stimulate innovation, but also restrict free competition when being abused. Its negative effect is particularly significant in pharmaceutical industry, because the public health will be affected when pharmaceutical companies abuse their patent rights to prevent and restrict the release of imitation medicine. This paper focuses on ＂scope of the patent＂ test which is used as the rules in U.S. Patent reverse payment antitrust litigation. Through analyzing the application of ＂scope of the patent＂ test in U.S., we will provide feasible suggestions to improve the judicial creativity criteria of the systerm of the IPB anti-trust in our country.