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Application of Essential Facilities Doctrine in the Enforcement of Anti-monopoly Law

Author: LiZuo
Tutor: XuShiYing
School: East China University of Political Science
Course: Economic Law
Keywords: Essential facilities doctrine Anti-Monopoly law Intellectual property Abuse Regulation
CLC: D922.294
Type: Master's thesis
Year: 2010
Downloads: 58
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Abstract

The twenty-first century is the era of knowledge economy. As the knowledge economy originating from innovation, dissemination and application of knowledge, Intellectual property rights plays an important position and role in the economic and social development increasingly. Accordingly, problems in the area of intellectual property are being paid more and more attention by law. At the same time, intellectual property issues in the field of anti-monopoly law are received increasing attention. Facing with the based on technology and rapidly changing market, Antitrust Law and Intellectual Property Law should have a very high technicality to meet the needs of development of the times, which is undoubtedly the urgent issue that enforcement agency, the legislature agency and the judiciary agency of anti-monopoly law have to face.The Essential Facility Doctrine (EFD) is originated in the United States, developed in the practice of European Union competition law and especially have been fully applied in the field of intellectual property rights. In contemporary, intellectual property rights have been elevated to the national strategy and they can assist enterprises to seize competitive advantage. Intellectual property is a reasonable monopoly, but the abuse of this monopoly would be regulated. The Essential Facility Doctrine regulates one of the unreasonable abuses - refused permission, namely, forcing the people who refuse permission to open his Essential Facility in specific circumstances, to maintain competition in the market. In China, "abusing intellectual property rights to restricting competition" is entered into the field of anti-monopoly regulation by our Anti-monopoly law, but the law does not stipulate the content of essential facilities doctrine. Therefore, this paper will combine with foreign experience to make the appropriate arguments and put forward that we should introduce the Essential Facility Doctrine, to improve our anti-monopoly law and establish similar international system of antitrust law.This paper is divided into four chapters. The first chapter introduces the Essential Facility Doctrine, researches and analyzes some hot and difficulty issues in theory and practice on this doctrine. By comparing the way at the same time, this chapter makes clear of the origin and development of the principle and put forward the author’s own opinion.Chapter II mainly discusses the conflicts and the coordination of between the Essential Facility Doctrine applied in the field of intellectual property rights to understand the relation between the abuse of intellectual property rights and Essential Facility Doctrine. This chapter also analyzes the relationship between antimonopoly law and intellectual property, and demonstrates the applicability of the principle applied to intellectual property from both theory and practice.Based on specific cases, Chapter III gives a more thorough discussion on the specific applications of essential facilities doctrine applied in the field of intellectual property, including relevant market definition and identification of dominant market position, the conditions where Essential Facility Doctrine applied in Field of intellectual property, the standards of compulsory access to intellectual property rights, as well as careful application of Essential Facility Doctrine.Chapter IV probes into the practice of Antimonopoly Law of China. This chapter provides a thorough analysis on introducing essential facilities doctrine to our country in field of intellectual property, discusses the necessity of introducing the principles to our country in field of intellectual property, the application standards and related issues, and finally put forwards the author’s own proposals on how to introduce the principle to China’s Anti-monopoly law framework, as well as the perfect of antimonopoly law.

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