Abuse Of Intellectual Property Rights Research Articles

Re-visiting Unsuccessful Competition Law Challenges to Abuse of Intellectual Property Rights in Asia

Re-visiting Unsuccessful Competition Law Challenges to Abuse of Intellectual Property Rights in Asia

Review of China’s unfair competition law: impact on intellectual property

The article examines the economic and legal problems of Chinese legislation on combating unfair competition, in particular, recent changes in the context of the impact on intellectual property (IP), abuse of IP rights in the digital economy. Law enforcement practice, protection against unfair competition in court proceedings, issues of investigation of cases and responsibility for violations are analyzed. Since the entry into force of the Anti-Unfair Competition Law 30 years ago, 757,000 cases of unfair competition have been investigated, fines paid or money confiscated amounting to 12,88 billion yuan (about 1,8 billion USD). This indicates a significant economic impact of competition legislation. The Supreme People’s Court of China has issued an Interpretation on the Application of the PRC Anti-Unfair Competition Law. The document clarifies issues related to general provisions, business ethics, confusion through imitation, false advertising, and unfair competition over the Internet and outside China. It explains that the general provisions of the Act apply only if the provisions of IP laws and specific provisions of the Act do not apply. The document defines two types of unfair competition through the Internet, namely: 1) insertion of a link or forced redirection of a URL to an Internet product or service that is legally provided to another business entity, without the consent of other persons and users, and 2) maliciously interfering with or disrupting a network, disrupting a product or service that is lawfully provided by others by misleading, deceiving, or forcing users to modify, close, or unload them without express notice and consent of users. In cases where the unfair competition takes place outside of China, but the result of the violation occurs in its territory, the court of the place where the result of the violation occurs in China shall have jurisdiction. This provides Chinese rights holders with favorable opportunities to protect their rights. Draft amendments to the Law on Combating Unfair Competition were considered. It is concluded that the study and application of the experience of China’s regulation of protection against unfair competition will be useful for legislators, administrative and judicial bodies of Ukraine

Ensuring Fair Play: Abuse Of Dominance And Intellectual Property Rights Top Of Form Bottom Of Form

Dominance in the market gives businesses many advantages, enabling them to change business dynamics and influence customer choices. This dominance, while used improperly, can damage clients via way of means of stifling competition and innovation. The distinct rights that intellectual property rights deliver authors and inventors over their works, on the alternative hand, lead them to critical equipment for selling innovation. Abuse of dominance and Intellectual Property rights are associated while dominant corporations make the most of their intellectual property rights to stifle competition. This article attempts to examines the feasible reasons of the subject matter, which includes inflated licensing charges, unwarranted litigation, and patent hold-up tactics. The interplay among abuse of dominance with intellectual property rights (IPR) marks a pivotal factor withinside the improvement of competition law. This article captures the essence of this complicated connection and affords a window into its complicated dynamics. It further attempts to emphasise the critical factor of convergence among those fields: the sensitive stability among selling innovation and retaining marketplace opposition receives disenchanted while dominant groups use their intellectual property rights to impede competition. Such abuse of IPR might also additionally take many unique forms, from extortionate licensing charges to pointless court cases meant to save your competition from coming into the marketplace. Case studies that function an examples from across the globe provide important insights into the rational consequences of intellectual property rights violations. The difficulties in finding the appropriate stability are demonstrated by notable instances such as the legal actions related to Qualcomm's SEP and Microsoft's antitrust actions in the EU. Emerging technologies in the virtual age, like as biotechnology and artificial intelligence, raises new concerns about supremacy and intellectual property rights. One example of an increasing burden in 5G technology is Standard-essential patents (SEPs). Using well-known case studies and international regulatory reactions, this article also attempts to provide a brief discussion of the issues and headaches associated with the abuse of dominance within the framework of intellectual property rights. Strict regulatory scrutiny is necessary to prevent dominant marketplace contributors from engaging in anti-competitive behaviour. The conflict between preventing anti-competitive behaviour and promoting innovation through intellectual property rights safety is a fundamental dilemma. Finding a balance between the two needs is essential if one is to sell innovation and keep markets competitive. In this regard, the author attempts to highlight how crucial it is to handle the junction between rights to intellectual property and abuse of dominance in an appropriate manner. It draws attention to the necessity of prudent legislation that preserves innovative incentives while maintaining sincere competition. In order to fully utilize intellectual property rights for the goodness of society, it is imperative to achieve this delicate balance. In a global economic system that is rapidly changing, legislators, lawyers, corporations, and students must all comprehend and navigate the intricate relationship between abuse of power and intellectual property rights. This article lays the groundwork for additional investigation and debate in the article by offering a concise yet comprehensive synopsis of the key traits and problems in this intricate field.

Digital Watermarking Implementation Of Digital Watermarking On Images Using The Least Significant Bit Method

The ease of accessing the internet in this modern era has led to illegal crimes, especially data copying, data distribution and abuse of intellectual property rights. From these problems emerged a method of securing data and information, namely watermark. Watermark is used for data security techniques, both for copyright protection and digital signatures in the visible and invisible realms. One of the data security techniques used here is to use the least significant bit (LSB) method. This method is used for data security or images that contain watermarks, for example on currency there is usually a logo to distinguish real and fake currencies. This study uses nine host images taken from the https://www.kaggle.com/datasets/felicepollano/watermarked-not-watermarked-images dataset with different sizes, namely 513 x 513 pixels, 488 x 350 pixels, 467 x 350 pixels, 500 x 333 pixels, 512 x 301 pixels, 490 x 350 pixels, 500 x 332 pixels, 400 x 266 pixels, and 500 x 308 pixels. As for the label image, it uses the uty logo which has a size of 50 x 50 pixels, 80 x 80 pixels, and 124 x 124 pixels. From the results of the watermark test that has been carried out using the LSB method, the average PNSR value is 65 dB, so it can be concluded that the watermark research using the LSB method gets pretty good image results and can be used for data security.
 Keywords: Watermark, Least Significant Bit, Peak Signal to Noise Ratio (PNSR)

UNFAIR COMPETITION IN PATENT LAW (PATENT TROLLING)

The purpose of this article is to consider problematic issues regarding unfair competition in patent law, in particular, patent trolling. For this purpose, the concepts of «patent trolling» and «patent troll» were analyzed. Types of patent trolls are also defined. The signs and peculiarities of patent trolling in Ukraine and the reasons for its spread are established. The manifestation of unfair competition, consisting in the abuse of intellectual property rights, is considered. Recommendations are given on introducing an effective mechanism to combat patent trolls and bring them to justice for unfair competition. The methodological basis of the research is general scientific and special methods of scientific knowledge. The use of these methods made it possible to describe and propose ways to solve the problem of unfair competition in patent law, in particular, patent trolling. Results: no provision in national legislation directly provides for the liability of patent trolls for abuse of rights, including under competition law. Ukrainian legislation does not provide for the liability of patent trolls for the abuse of rights, which in a certain way have a conditional nature, since they are provided under their personal responsibility in terms of compliance of the object with the conditions of patentability or the criteria of protectionability. In this regard, it is necessary to eliminate the causes and conditions that contribute to the mentioned negative phenomenon at the legislative level. Discussion: in fact, «patent trolls» are neither product manufacturers nor inventors, but only possess property rights to objects of intellectual property rights, buying up protective documents for them and realizing these rights only by prohibiting their use, initiating lawsuits, in fact, that’s why they got that name.

Antitrust Regulation in the Field of IP of MNEs in the New Era: Starting with the Patent Tying Behaviour from the Perspective of Comparative Law

With the vigorous development of patented technology, the problem of some large multinational enterprises implementing monopoly behaviour by abusing intellectual property rights such as patent tying is becoming more and more prominent. This has had a great impact on fair market competition, especially in those developing countries. Combined with the regulation of China’s Antitrust Law and other legal systems on this issue at the present stage, and based on the analysis of its imperfections, this paper explores the excellent achievements in international attempts such as the principle of the rationality of the United States and the comprehensive analysis method of the European Union. In the context of TRIPS, countries all over the world need to pay close attention to how to regulate the monopoly caused by the abuse of intellectual property rights, including patent tying. It is concluded that to better resist the monopoly of abusing intellectual property rights and develop the new driving force of a domestic innovative economy, China needs to start with the substantive concept and clarify the clear meaning, definition standards, and rank order of relevant legal concepts and systems. It also needs to up special authoritative law enforcement agencies to regulate the monopoly of multinational enterprises abusing intellectual property rights, innovate their punishment methods, strengthen the punishment, and better ensure fair market competition.

Globalization Impacts on The Structure of Ukraine's Economy: Innovations Challenges for Management in Digitalization, Social and Economic Transformations

Globalization is one of the important elements of external environment of the enterprises, that is why it is defined to be the main object of this study. The main signs of globalization in international trade and the qualitative / quantitative changes caused are studied, in particular, attention is paid to the mutual exchange of resources to solve international problems, including environmental ones. The transformation of competitive / monopoly relations under the influence of globalization in the areas of levels of cooperation, the ratio of competition / rivalry, the dependence of competition on innovation, models of competitive behavior are analyzed. The impact of globalization on economic processes of influences redistribution in the markets between residents and nonresidents is investigated, the factors that cause changes in investment activity of nonresidents are identified, namely the direct relationship between changes in the index of economic globalization and the number of foreign enterprises in Ukraine. Based on the research, the identified exogenous factors are complemented by such factors as protection of intellectual property rights and prevention of abuse of intellectual property rights, and endogenous - as a relationship of decisive influence on businesses in specific markets, management awareness of the impact of their transactions on the market and others. It is concluded that globalization does not take into account the national characteristics of individual economies, the resource potential of development, but involves the use of existing benefits, respectively, those who want to become part of it must acquire certain exclusivity, disseminate relevant information, introduce innovation in enterprise management systems, show interest in cooperation with the relevant participant for the development of digitalization, social and economic transformations.

Kryzys ochrony zdrowia publicznego na tle problemu dostępu do szczepionek przeciw COVID-19

The Acute Respiratory Syndrome (SARS-CoV-2) pandemic has exposed significant weaknesses in many countries in terms of preparedness to deal with a completely new type of public health threat. Difficulties and delays in the supply of COVID-19 vaccines have drawn public attention to the leading role played by transnational corporations in access to medicinal products. The authors consider these problems against the background of the concept of epidemiological solidarity and the legal framework for the protection of intellectual property in the World Trade Organization. In this context, they point out the key role of human rights as an instrument to prevent the abuse of intellectual property rights.

Improving Global Public Health: Responsiveness to Public Interest Considerations in Intellectual Property Law

Over the past few years the WTO Council for Trade-Related Aspects of Intellectual Property Rights recognized the growing concern over an imbalance between intellectual property and public interest. With regard to health technologies in particular, without sufficient use of balancing exceptions and limitations, patents and related monopoly rights primarily serve to protect corporate interests of the pharmaceutical industry. The broadest possible use of compulsory licenses is one of the essential measures that can contribute to increase in responsiveness to public interest considerations in defining the boundaries of the IP-related components that determine access to medicines. Another instrument is the process of interpretation and implementation of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), which aims not only at clarifying the meaning of the provisions or determining the intentions of the parties to this treaty, but sets sights on reconciling its competing objectives. The need to interpret and implement the TRIPS Agreement in a way that protects public interest is confirmed by the obligation of acting “in a manner conducive to social and economic welfare” under Article 7 of the Agreement. Moreover, Article 8 allows to adopt “measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development”. Therefore, in the context of the problem of access to medicines, the important role of human rights as an instrument for the prevention of abuse of intellectual property rights and the restoration of their balance, taking into account the interests of both the beneficiaries of protection and the general public, should be emphasized.

Use Requirements in Intangible Franchises

The requirement that a grantee of a government-granted franchise use that franchise was a widespread assumption in all western legal regimes since the thirteenth century. In particular, intellectual property (IP) had reduction to practice or working requirements which have now faded from the fundamental understanding of IP. The loss of these requirements and the reasons for their existence has resulted in widespread abuse of IP rights. Now international trade practitioners are beginning to rediscover some of these requirement mechanisms. Accordingly, this article provides an overview of various use requirement mechanisms, their trade offs, and their relative conformity with the TRIPS agreement.

Regulation on the Abuse of Intellectual Property Rights of Chinese Antitrust Law - Focusing on the Case of Standard Essential Patent Execution –

Regulation on the Abuse of Intellectual Property Rights of Chinese Antitrust Law - Focusing on the Case of Standard Essential Patent Execution –

Recent Developments in China’s Antimonopoly Regulations on Abuse of Intellectual Property Rights

Over the past decade, while strengthening intellectual property rights (IPR) protection, China has also explored means to regulate the abuse of IPRs. IPR protection in China is mainly based on the Anti-Monopoly Law (AML), in particular Article 55. Recent years have seen more and more judicial and administrative enforcement practices related to China’s antimonopoly regulation on the abuse of IPRs. Provisions on the Prohibition of the Abuse of Intellectual Property Rights to Eliminate or Restrict Competition was released on April 7, 2015, and the draft of Antimonopoly Guidelines in Relation to the Abuse of Intellectual Property Rights was released for public comment in early 2017. It can be expected that China’s antimonopoly guidelines on the regulation of abuses of IPRs will come out in the near future.

The Competition Law Regulation of Standard Essential Patents in South Korea

South Korea is squarely involved in the global debates regarding the intersection between standard essential patents (SEPs) and competition law, as it is home to an active competition agency and major technology firms such as Samsung and LG that have rapidly advanced from being almost pure implementers/licensees to simultaneously becoming innovators/licensors in the information technology sector. The landmark case between Samsung and Apple was a major milestone in terms of the application of competition law to the exercise of patent rights by an SEP holder, in particular whether a filing of an injunction claim based on an SEP violated the law as an abuse of intellectual property rights. The Korea Fair Trade Commission has also shown substantial interest and activity in this area, as represented by its recent revisions of its intellectual property rights related guidelines, and with the Commission’s latest decision at the end of 2016 against Qualcomm, the debate around the exercise of SEPs is sure to be more vigorous than ever, in addition to expanding to new issues and dimensions.

Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University, on the Anti-Monopoly Commission of the State Council's Anti-Monopoly Guidelines against Abuse of Intellectual Property Rights

This comment is submitted by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University in response to the Anti-Monopoly Commission of the State Council of the People's Republic of China’s public consultation on its draft Anti-Monopoly Guidelines Against Abuse of Intellectual Property Rights. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze antitrust matters involving intellectual property rights.

Comment of the Global Antitrust Institute, George Mason University School of Law, on the State Administration for Industry and Commerce Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights

This comment is submitted to China's State Administration for Industry and Commerce (SAIC) by the Global Antitrust Institute (GAI) at George Mason University School of Law in response to the SAIC's consultation on its Anti-Monopoly Guidelines on Abuse of Intellectual Property Rights. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents.

Comment of the Global Antitrust Institute, George Mason University School of Law, on the National Development and Reform Commissionns Anti-Monopoly Guide on Abuse of Intellectual Property Rights

This comment is submitted to China's National Development and Reform Commission (NDRC) by the Global Antitrust Institute (GAI) at George Mason University School of Law in response to the NDRC's Draft Abuse of Intellectual Property Rights Guideline. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents, as well as refusals to license, the essential facilities doctrine, discriminatory licensing, “unfairly high” pricing, bundling, cross-licensing, grantbacks, charging for expired patents, and the use of no-challenge clauses.

Essential facilities with Chinese characteristics: a different perspective on the conditional compulsory licensing of intellectual property

China has become the world’s fastest growing market for licensed goods and by some estimates, China has found to be emerging d as the world’s largest patent filing nation. China’s State Administration of Industry and Commerce (SAIC) has indicated that it is close to finalizing rules on how to enforce the Anti-Monopoly Law in intellectual property-related fields. These Regulations of the Administration for Industry and Commerce on the Prohibition of Abuse of Intellectual Property Rights to Eliminate or Restrict Competition (‘AML Enforcement Rules in IP’ or ‘the rules’) contain the potential for compulsory licensing. In particular, the rules contain provisions intended to compel access to standard-essential patents and to curtail patent ambushes arising out of standards setting. In general, the rules presume it to be an abuse of a dominant position when a patentee deliberately fails to disclose the existence of a patent knowing it would likely be included in a standard, in violation of the standard-setting organization’s rules. The IP Enforcement Rules may promote a kind of ‘essential facilities with Chinese characteristics’—a result, that while similar to EU approaches, is at great odds with the approach that courts in China’s largest single-nation trading partner, the United States, have taken in the past decade.

Institutional Thinking on the Prevention of IPR Abuse

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。 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. Modern 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.

Las licencias obligatorias de patentes en el Ecuador. Una breve referencia al caso de los medicamentos y al decreto presidencial 118

La licencia de patente es un mecanismo de autorización de explotación que puede surgir de la voluntad del licenciante en convenio con el licenciatario o bien puede originarse de un acto de la Administración Pública. En el segundo caso, tanto la normativa subregional andina, cuanto nuestra Ley de Propiedad Intelectual, contienen causales específicas y alineadas con la doctrina y convenios internacionales, por las cuales, puede el Estado otorgar licencias obligatorias de patentes. En este sentido, cabe analizar exhaustivamente las mismas, como mecanismo de prevenir abusos de derechos de propiedad intelectual y precautelar intereses públicos legítimos. En el caso ecuatoriano, el sector farmacéutico específicamente, mediante Decreto 118, ha sido foco de atención en cuanto a la potestad estatal de otorgar licencias obligatorias de medicamentos bajo los parámetros legales enunciados.

Intellectual Property Rights & Compulsory Licensing: The Case of Pharmaceuticals in Emerging Markets

On 9 March 2012, India's Controller General of Patents, Designs and Trademarks granted a non-exclusive and non-assignable compulsory license to NatcoPharma to manufacture and sell a generic version of Bayer's cancer drug Nexavar at a discount of 97% on the innovator price. The ruling revives a drawn-out debate on the use and abuse of intellectual property rights in international commerce. The inclusion of the agreement of trade-related aspects of intellectual property rights (TRIPS) in WTO rules in 1994 committed member countries to honour patent rights and to apply common compulsory licensing standards when seeking market relief. Lately, however, the criteria for such interventions seem to have been slipping. Applying the 'public non-commercial use' rationale to non-emergency, non-infectious diseases, Thailand converted compulsory licensing into an effectively unconstrained method of pure cost containment. Widespread use of that model would require the developed world to shoulder a disproportionate share of the necessary R&D expenditures while simultaneously presenting it with an attractive option to shed that burden. The decision taken by India's Controller General of Patents, Designs and Trademarks in the case of Nexavar may present a first step into that direction. The US Hatch-Waxman Act provides a means for India Inc. to sustain its generic business model in a TRIPS-compliant fashion. Advancing from here requires the country or any other emerging economy to refocus R&D efforts on product technology and, for their own benefit, to insist on a nation-blind enforcement of intellectual property rights. Compulsory licensing is not an alternative to this. Neither is it a substitute for indigenous technology, nor does it provide a solid foundation for upgrading a country's pharmaceutical sector. It is legitimate in a range of circumstances, but standards and implementation principles must be clear to avoid stifling the benefits of technological progress and global commerce. Going forward there is a need to recall some of the principal differences between corporate and political responsibility in attaining socially preferred outcomes, to clarify the role of WTO rules as constituting global trade, and to promote genuine national debates on healthcare and funding.