“专利蟑螂”的反垄断法规制

Study on the Regulation of Patent Trolls in the Anti-Monopoly Law

简要探讨"专利蟑螂"的性质、形成因素、对社会和经济的危害,以及我们必须防范"专利蟑螂"在我国形成气候、危害我国相关产业市场竞争力的理由。通过分析相关案例认为,可采取的防范措施包括严格控制专利被纳入标准的条件,运用反垄断法限制专利权人通过并购途径变成"专利蟑螂"以及综合运用反垄断法等各种法律手段,严厉制裁"专利蟑螂"的各种排除、限制竞争行为。

This text explores briefly the nature of patent trolls, the factors of its formation, the harm it has done to the society and the economy, as well as the reasons why we should address it in China seriously at present stage.By analyzing and introducing relevant cases the author considers the following important aspects to curb the anti-competitive activities of patent trolls that may undermine the competitive edge of our relevant industries： strictly controlling the requirements for adopting a patent as Standard Essential Patent（ESP）, strictly controlling the requirements for the examination of merge of entrepreneurs under the Anti-Monopoly Law of China with a view to stop patentees to make patent trolls through merge of entrepreneurs, and spare no efforts to take various legal measures, including the Anti-Monopoly Law to vigorously punish all anti- competitive actions that exclude or restrict competition.