知识产权滥用概念的反思与重构

摘要

The absence of the concept of IP abuse in the Anti-monopoly Guidelines on IP Abuse of the Anti-monopoly Committee of the State Council (draft for comments) will bring disputes and difficulties to law enforcement.The existing theories on the concept of IP abuse are one-sided. The theory of "subjective malicious exercise"only focuses on the subjective state of abuse, while the theory of"violation of the tenet of rights"and the theory of"transcending the boundary"only reflects the objective form of abuse, both of which can not reveal the connotation of the concept of IP abuse and has no extensiveness. The concept of IP abuse should not only unify the subjective and objective state of abuse, but also require the consistency of the external and internal nature of the objective form of abuse, and cover the field of anti-monopoly law in its extension. The reconstructed new concept of IP abuse not only has rich connotations, but also expands the scope of application, which is conducive to promoting intellectual property innovation in China.%我国《国务院反垄断委员会关于滥用知识产权的反垄断指南》(征求意见稿)中知识产权滥用概念的缺位将给执法带来争议和困难.现有的知识产权滥用概念学说具有片面性,"主观恶意行使说"仅关注滥用行为的主观状态,"违反权利本旨说"和"超越界限说"则仅反映滥用行为的客观形态,均不能揭示知识产权滥用概念的内涵,且不具有周延性.知识产权滥用概念既要做到滥用行为的主客观状态相统一,也要求滥用行为客观形态的外在表征与内在本质具有一致性,并在外延上涵盖反垄断法领域.重构后的知识产权滥用新概念不仅内涵丰富,而且扩展了适用范围,有利于促进我国知识产权创新.