Abstract: With the development of knowledge economy, technology has become the core competitiveness of enterprises, and the licensing agreement of knowledge products may become a threat to damage competition because of its exclusive characteristics. Therefore, anti-monopoly litigation against technology owners has appeared in judicial practice. Starting with the conflict of interests between anti-monopoly law and intellectual property law, this paper analyzes their legislative purposes and the principle of balance between * * * and coordinated development.

Keywords: anti-monopoly law, intellectual property law, conflict of interest, principle of balance

First, the case of Microsoft.

1, anti-monopoly lawsuit about Windows system

The Windows operating system developed by Microsoft in the United States occupies more than 90% of the global market share. 1998 may 18, the U.S federal department of justice and the attorneys general of 20 States filed an antitrust lawsuit against Microsoft, accusing Microsoft of abusing its dominant market position and preventing other software vendors from competing with it. On April 3, 2000, the District Court of the District of Columbia made a judgment. The conclusion is that Microsoft imposes IE browser on users by bundling, installs source code in Windows operating system, and excludes competitors. [ 1]

2. Debate on the above-folding clause.

The license contract between Microsoft and the original equipment manufacturer stipulates the "above-folding clause": users who have installed the Windows operating system are required to display the unified features of Windows (such as icons, their design style and size, etc.). When you start the computer for the first time, it will appear on the screen. The plaintiff claimed that Microsoft abused its exclusive right to Windows operating system software through the "above folding clause", which harmed the interests of equipment manufacturers, consumers and other software manufacturers. [2]

In these two different cases, as the plaintiff's producers and consumers, both thought that Microsoft abused the dominant position of Windows system in the computer operating system market, and harmed the long-term interests of other competitors and the whole market. Microsoft insists that its rights are legally protected by intellectual property rights. This reflects the conflict between anti-monopoly law and intellectual property exclusivity. Is there a better way to balance? In other words, how is the value protection of intellectual property reflected in the anti-monopoly perspective?

Second, the conflict of interest between anti-monopoly law and intellectual property rights.

1, the legislative purpose of intellectual property rights-to give full protection to the obligee.

The characteristics of intellectual property can be summarized into five aspects: intangibility, exclusiveness, regionality, practicality and reproducibility. From the point of view of this paper, the biggest influence on market competition is its exclusivity. "Property right reveals the monopoly or exclusiveness of intellectual property as an absolute right and dominant position." [3] "

As far as the Microsoft case is concerned, due to the exclusiveness of intellectual property rights, the copyright owner, Microsoft Company, enjoys the exclusive right to use the Windows operating system, which is from the source of rights. In the exercise of rights, because intellectual property rights are protected by technological achievements that promote social progress, most rights holders will socialize their achievements by using license agreements. [4] Driven by the requirement of maximizing technological benefits, the law gives the right owner the privilege of becoming a monopolist through legal transactions. This kind of "exclusive right"

The prices and contracts obtained through exercise are different from those obtained under competitive market conditions. Once intellectual products are protected by the intellectual property system, it means excluding the same behavior of others. Therefore, intellectual property rights are ultimately linked to the status of "monopoly not obtained through competition". [5]

Therefore, the exclusiveness of intellectual property rights may be abused by the obligee, thus undermining the spread and innovation of technology.

For example, the use of intellectual property rights to form an economic alliance and restrict the entry of other competitors; Obtain a dominant position in the technology market; Or unreasonably overcharge the licensee in the licensing contract, restrict the use of technology after the expiration of the contract, or extend the contract term in disguise by asking exorbitant prices ... These behaviors have undoubtedly deviated from the original intention of intellectual property to promote social progress, and because of this, other competitors of the other side have to resort to anti-monopoly law to safeguard their own interests.

2. The legislative purpose of anti-monopoly law is to protect the stability of market competition structure.

In the market economy system, the most important mechanism is the competition mechanism. Once the competition mechanism is distorted, the market will not function normally and the market order and structure will be destroyed. Monopoly from free competition is an important force to distort the competition mechanism. However, the market mechanism itself does not have the function of maintaining fair competition, so it is necessary to establish a legal system to protect the competition mechanism. The purpose of enacting anti-monopoly law is to maintain and promote fair trade and achieve full and effective competition.

In order to establish an effective competitive market structure, anti-monopoly law opposes monopoly, restricts competition, abuses market dominance and maintains competitive market structure. [6] On the legal level, monopoly is the stipulation of behavior and state. Monopoly is first of all a regulation of a kind of behavior, and anti-monopoly law focuses on the behavior of market subjects. As long as the purpose of this behavior is to restrict competition, it will be punished by law. Monopoly is also a national regulation, focusing on market concentration. Monopoly is essentially that the market reaches or exceeds the lower limit of enterprise concentration stipulated by law. Therefore, even if there is no obvious monopolistic behavior, the relevant government departments can take legal action to turn monopolistic behavior into a competitive state, and the monopolistic state itself becomes the intervention point of national coercive power.

[7]

No matter in developing countries or developed countries, the "social standard" of anti-monopoly law makes it the "economic constitution" of market economy countries, shouldering the heavy responsibility of maintaining market economic order. Although in most cases, the anti-monopoly law and its related policies are realized through state public power, the anti-monopoly law itself aims at the best state of free competition. Therefore, the market economy is inseparable from the anti-monopoly law.

3. Conflicts of interest between anti-monopoly law and intellectual property law.

The conflict of interest between anti-monopoly law and intellectual property law mainly focuses on the following issues: First, to what extent does competition policy pay attention to short-term efficiency distribution or long-term efficiency. If we pay attention to short-term interests, we will be more tolerant of the behavior of intellectual property rights holders, while if we pay attention to long-term development, we will strictly limit the exercise of their rights;

Second, whether the market is dominant because of intellectual property rights. If the answer is yes, then intellectual property rights must be regulated by anti-monopoly law; Third, the economic characteristics of intellectual property itself (low marginal cost, easy to be stolen). This shows that when analyzing the terms of the license agreement with anti-monopoly law, we should also pay attention to the rationality of the obligee's exercise of rights; Four, whether the license agreement should be recognized as a horizontal or vertical agreement to restrict competition. [8]

In the two cases of Microsoft listed in this paper, the plaintiff both believed that Microsoft had destroyed its "competition right" by monopolizing the license of Windows operating system, so the anti-monopoly law should punish Microsoft's behavior. The most important question is: what legal principles should be applied to the core business behavior of intellectual property law, especially copyright law-allowing others to use protected works? It is true that today, technology has become the core factor of market competitiveness, and the scope of protection of the exclusive right of the owner of knowledge products has been paid more and more attention by the anti-monopoly law. If individual intellectual property rights are fully protected under the concept of freedom of contract, there will be more "Microsoft" cases. However, if the monopoly of intellectual property rights is separated from the sharp edge of anti-monopoly, there will undoubtedly be a sense of crisis, even the enthusiasm of technological innovation will be lost, and the cost of social development will be increased. In short, one is to oppose monopoly and the other is to grant monopoly. [9] For this question, judicial practice has made different answers, and there is no conclusion in theory.

Third, how to realize the coordinated development of anti-monopoly law and intellectual property law.

1, the reasonable principle of anti-monopoly law

The significance of anti-monopoly law lies in shaping a good market structure, allowing competitors to compete fairly, thus improving the level of economic development. Out of respect for the public interest, it shows flexibility and different attitudes towards the same behavior in different periods, which is an internal matter of a country; In the fierce international market, protecting domestic intellectual property rights means protecting domestic commercial interests. At this time, the anti-monopoly law will support the exclusivity of intellectual products. In a word, the standard behind the anti-monopoly law is the need of economic development. From the domestic market, it is the interests of consumers and the public. In the world, it is to maximize national interests on the basis of peaceful development. Therefore, in the face of various competitive behaviors, the legislation and judicial practice of all countries in the world have basically established the "reasonable principle". [10] According to the principle of rationality, the anti-monopoly law does not prohibit all economic alliances, but only the merger of enterprises that can produce or strengthen market dominance. Therefore, taking the principle of rationality as the basic principle of anti-monopoly law can make the anti-monopoly law better adapt to the complex economic situation and avoid the negative impact that mechanical law enforcement may have on normal economic activities. [ 1 1]

In the anti-monopoly norms of intellectual property rights, the "reasonable principle" is also applied. Therefore, there are several basic principles that cannot be ignored: first, intellectual property rights cannot be considered as leading to market dominance; Monopoly comes from the competition system rather than the intellectual property system. Social progress and innovation are the original intention of intellectual property rights, so not every intellectual property system should apply anti-monopoly law. Secondly, the competition policy should recognize the rights recognized by the legal system of intellectual property rights; Only in this way can the enthusiasm of technological innovators be protected. Finally, although there are some agreements that restrict competition, it is tolerable if this agreement can promote competition more than no agreement; In the absence of license agreement, it is likely that there will be confusion in efficiency because there are no regulations. Without the promotion method of license agreement, the socialization of technological achievements will become empty talk. [12] These three principles show that when dealing with this kind of problems, it is recognized that the basic adjustment of intellectual property rights is the foundation, and then it is connected with the anti-monopoly law.

2. Balance of interests in intellectual property law.

As can be seen from the above discussion, the exclusive right of intellectual property rights has attracted more and more attention from the legal profession. In practice, especially after China's entry into WTO, there are more and more lawsuits surrounding intellectual property rights. In today's global trade integration, the relationship between intellectual property rights and domestic and international economic development is an unavoidable issue in legal research. Especially in technology licensing, with the increase in the number of patent applications and the expansion of the scope of protection, many enterprises and research institutions have fallen into an embarrassing situation, and the technology that could have been used for free has fallen into the scope of patent protection of others, which has become an obstacle to further development, research, production and operation. Even the patent system that encourages innovation has become a tool for some people to maliciously set a "litigation trap", which hinders the further development of the economy. For example, a DVD has as many as 1500 valid patents from parts to parts. If China manufacturers want to successfully enter the international market, they must first obtain the permission of foreign patentees and pay a considerable fee.

Faced with this situation, countries all over the world gradually realize that it is necessary to make specific institutional arrangements based on the principle of stimulating the creation of knowledge products and facilitating the public to obtain and use knowledge products. Balancing the private interests and public interests of intellectual property owners is the cornerstone of intellectual property legal system. [13] Therefore, in the intellectual property system, there are many targeted provisions to coordinate public interests. Such as fair use in copyright law and compulsory license in patent right. Most importantly, the protection of intellectual property rights has a time limit. Once it expires, the product will enter the public domain and become the common wealth of all mankind. Therefore, fundamentally speaking, both intellectual property rights and anti-monopoly law focus on the long-term development of society.

3. The principle of balance-the basic principle of coordinating intellectual property rights and anti-monopoly law.

Although there are not many cases in which intellectual property issues are brought into anti-monopoly in China at present, and there is no uniform standard in relevant judicial practice, in fact, the conflict between the two is mainly concentrated in two aspects. First of all, the excessive protection of intellectual property rights will lead to the imbalance of competition, which is intolerable by the anti-monopoly law. Secondly, the detailed review of the anti-monopoly law will damage the autonomy and innovation enthusiasm of competitors. Therefore, in order to find a suitable standard, it is necessary to make a case analysis by maximizing competitive interests and find a balance between the interests of both parties to the contract and the public. The author believes that this standard can not be established by clear and specific provisions of the law, and basically depends on the self-evaluation of market subjects and the determination of judges' cases.

First, it is clear that the management of knowledge products needs to be regulated by contract law and intellectual property law to ensure personal will and social innovation. "Licensing should benefit copyright owners: this is part of the reason for designing copyright law and contract law. Success in the market cannot deprive a company of its interests in copyright law and contract law. " [14] Therefore, anti-monopoly is not aimed at large enterprises. The monopoly formed by the innovation and technological progress of large enterprises is not a real monopoly, and the monopoly profit contained in the entrepreneur's profit can be regarded as the winner's dividend.

This kind of enterprise with "technological monopoly" is actually still in competition, because on the one hand, it has to compete with enterprises with original technologies and products, on the other hand, it is threatened by potential competition. [ 15]

This passage shows that the formation of monopoly position is not necessarily the elimination of competition. In order to maintain its position, monopolists must work harder to improve technology and reduce costs. If so, consumers will ultimately benefit. The development of IT industry can prove this.

In addition, from the perspective of contract law, the anti-monopoly law is an amendment to the expression of will of both parties.

This kind of correction should occur under obviously unfair circumstances, such as one party using its dominant position to impose unreasonable obligations or prices on the other party, which leads to "the strong is stronger and the weak is weaker", which is beyond the acceptable limit of normal competition. This is the space for the anti-monopoly law to play its role. In the "above folding" clause between Microsoft and computer equipment manufacturers, Microsoft did not unreasonably restrict the screen setting and display of "above folding", nor did it restrict manufacturers and consumers from redesigning screens after "above folding". Just like the author's views on copyright, license and "above the fold", under the principle of contract autonomy, the license agreement can not only protect the interests of the licensor. On the whole, the licensing contract is a game process, because the balance of interests between the two parties will inevitably be reflected in the contract price. The more rights you get, the higher the price you pay. Walter from Germany? Eugen said: Freedom of contract "is indispensable. Without individual freedom contracts from family and enterprise economic plans, it is impossible to adjust the daily economic process through complete competition. " [16] Moreover, this "above the discount, above the discount" clause can enable consumers to obtain stable and low-cost services by reducing training costs, carrying out quality control, and clarifying trademark identification, and finally realize the increase of social benefits by reducing transaction costs. According to the principle of rationality, it can be considered that the above-mentioned folding clause is not the result of complete abuse of rights. If we must introduce anti-monopoly review into this clause, it will destroy the contract and the free choice of market participants in the competitive environment, and then pay the price of damaging social and technological progress, which is a problem that anti-monopoly law has to think about. Therefore, only by analyzing the contract terms and weighing the interests of many parties with the method of economics can we find the function space of anti-monopoly law.

Second, the anti-monopoly law cannot completely withdraw from the field of intellectual property protection. As long as this "protection" becomes an umbrella that undermines competition, the anti-monopoly law should be duty-bound to regulate it to ensure the healthy development of the competition structure.

Facts show that freedom of contract can sometimes not protect the competition between the supply and demand sides of the market, and can even be used to eliminate competition. The establishment of cartels and other monopoly organizations is an example. Enterprises use freedom of contract to establish monopoly organizations, and monopoly organizations use freedom of contract to lead to compulsory contracts. "Freedom of contract" often becomes an excuse for monopoly groups to prove that they are protected by law and enjoy corresponding rights. [17] It is precisely because the traditional intellectual property law and contract law overemphasize the autonomy of the will that the abuse of rights may become a legal phenomenon. In the intellectual property law, the law gives the obligee the privilege, and delimits a closed space for the income of intellectual products, which can only be enjoyed by the obligee, which naturally leads to conflicts with other social stakeholders.

Just like the first case at the beginning of this article, the courts in the United States and Europe respectively found that Microsoft's behavior violated the anti-monopoly law and made a judgment against Microsoft. From this fact, we can see that the anti-monopoly law has every reason to intervene and regulate the monopoly phenomenon in the field of intellectual property rights. This is because of the nature of antitrust. Therefore, despite the "exclusive" barriers of "private rights" and the rhetoric of freedom of contract, the rationality of the intervention of anti-monopoly law should be recognized from the long-term interests of society.

Thirdly, the conclusion of this paper is that the relationship between intellectual property rights and anti-monopoly law no longer simply regards intellectual property rights as monopoly immunity, but seeks a balance between protecting intellectual property rights and preventing obligees from abusing their rights; Restrictive competition related to intellectual property rights should also be included in the scope of anti-monopoly regulation. When an enterprise conducts anti-monopoly, it considers not only the scale, but also whether to use its own scale to restrict competition and harm the interests of consumers. [ 18]

As the Supreme Court of the United States stated in the Dell case: "The objective format standards recognized through fair procedures have' substantial advantages in promoting competition'. By formulating standards, we can improve the applicability of products, thus increasing consumers' choices, and we can also reduce production costs by standardizing inputs and economic indicators. So that new entrants can produce products according to current standards and reduce market access barriers ... "Generally speaking, intellectual property rights and competition policies are concerned with technological progress and the ultimate interests of consumers. Enterprises should carry out technological transformation, but at least prevent hitchhiking, so intellectual property protection is essential. However, market players only have enough motivation to reform when facing competition, so creating a healthy competitive environment is the basis of economic development. Therefore, it is necessary to balance the interests between increasing competition and further technological transformation. Facing the complexity of economic life, the cross-cutting problems between different legal fields are becoming more and more common. At this time, it is necessary to correctly grasp the legislative meaning of different departmental laws and promote the overall interests of society.

Precautions:

[1] In June, 2000, Microsoft filed an appeal, and the Court of Appeal made a judgment, which basically concluded that Microsoft adopted anti-competitive measures to maintain its monopoly position in the field of computer operating system software, but denied the judgment of the trial court trying to extend its monopoly position to the field of browser software. 165438+1On October 6th, Microsoft reached a settlement with the Ministry of Justice and nine of the plaintiffs. Because it has little to do with this article, I won't introduce it in detail. Jeff and Shi Jianzhong, case course of introduction to economic law, 204 pages, Intellectual Property Press, September 2004. ? See Ronald a. cass: copyright, license and "above the fold", source:

American social science research website www.ssrn.com

[2] Ping Liu's comprehensive comparative study of intellectual property rights and property rights is contained in Intellectual Property Rights, No.4, 2003.

[3] "According to the basic policy of copyright law, copyright owners enjoy great freedom in deciding the terms of licensing their products. After all, the value of copyright is that the right owner can set the terms and expect to get the maximum return from the license. "

See Ronald A. Cass: Copyright, License and above the fold.

[4] The author does not deny that the "exclusivity" of intellectual property rights has a time limit and is restricted by fair use.

So the exclusivity discussed here is relative, so don't be too extreme. The full text of this paper is based on the existing intellectual property system, not questioning intellectual property itself, but mainly thinking from the perspective of anti-monopoly and overall social development. At the same time, I don't deny that the initial acquisition of intellectual property rights is also the result of the creative work of the obligee under the condition of fair competition in the market.

[5] "Effective competition" is an objective model in the economic sense. In this mode, competition is regarded as a means to realize the overall economic and social interests. This model is put forward to establish a market structure conducive to economic development. As a legally operable target model, the key is how to establish a standard to evaluate whether the competition in the market is effective. According to the experience of other countries, the target mode of effective competition is mainly based on standardizing the competitive market structure. According to German Kang Sembach's theory, an optimized market structure needs multiple competitors, whose products are moderately different and the market is highly transparent. Wang: Competition Law Research Press 1999, pp. 73-90.

[6] Liu Ning Si Yuan Lin Ping Yan Ping: "International Anti-monopoly Law" Shanghai People's Publishing House, September 2002, p. 7-9.

[7] "However, as far as the perceived conflict is concerned, it seems to originate from four main uncertain areas: (a) to what extent competition policy is related to short-term distribution efficiency or long-term dynamic efficiency, (b) whether market dominance should be inferred from the existence of intellectual property rights, (c) some obvious economic characteristics of intellectual property rights, and (d) whether a particular contract, license or merger should be regarded as horizontal or vertical. See "Competition Policy and Intellectual Property", OECD, Competition Law and Policy Committee, DAFFE/DLP(98) 18 Petition Law, which is applied under reasonable standard rules, seems to be sufficient to distinguish between "yes" and "no".

And anti-competitive tying under the condition of giving necessary market dominance through intellectual property rights. See Competition Policy and Intellectual Property Rights, OECD, Committee on Competition Law and Policy, DAFFE/DLP (98) 18.

[12] Feng Xiaoqing's interest balance theory: intellectual property contains the theoretical basis of intellectual property law.

Liu Bingyong, On the Theoretical Basis of Anti-monopoly, Jiangsu Social Sciences, No.5, 2002.

[15] Liu Bingyong's On the Theoretical Basis of Anti-monopoly was published in Jiangsu Social Sciences, No.5, 2002.

Liu Bingyong's On the Theoretical Basis of Anti-monopoly is published in Jiangsu Social Sciences, No.5, 2002.

[17] Ma Hongyu's "Looking at the Development Trend of Anti-monopoly Law from the Case of Microsoft —— Also on Some Implications for China's Anti-monopoly Legislation" was published in Journal of Lanzhou University of Commerce, No.4, 200 1.