The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

Judicial Specialisation in Intellectual Property: the Unified Patent Court as a Model of Specialised Court

The aim of this thesis is to discuss and develop the Unified Patent Court project to account for the role it could play in implementing judicial specialisation in the Intellectual Property field. To provide an original contribution to the existing literature on the topic, this work addresses the issue of how the Unified Patent Court could relate to the other forms of judicial specialisation already operating in the European Union context. This study presents a systematic assessment of the not-yet-operational Unified Patent Court within the EU judicial system, which has recently shown a trend towards being developed outside the institutional framework of the European Union Court of Justice. The objective is to understand to what extent the planned implementation of the Unified Patent Court could succeed in responding to the need for specialisation and in being compliant with the EU legal and constitutional framework. Using the Unified Patent Court as a case study, it is argued that specialised courts in the field of Intellectual Property have a significant role to play in the European judicial system and offer an adequate response to the growing complexity of business operations and relations. The significance of this study is to analyse whether the UPC can still be considered as an appropriate solution to unify the European patent litigation system. The research considers the significant deficiencies, which risks having a negative effect on the European Union institutional procedures. In this perspective, this work aims to make a contribution in identifying the potential negative consequences of this reform. It also focuses on considering different alternatives for a European patent system, which could effectively promote innovation in Europe.

AI and legal personhood: a theoretical survey

I set out the pros and cons of conferring legal personhood on artificial intelligence systems (AIs), mainly under civil law. I provide functionalist arguments to justify this policy choice and identify the content that such a legal status might have. Although personhood entails holding one or more legal positions, I will focus on the distribution of liabilities arising from unpredictably illegal and harmful conduct. Conferring personhood on AIs might efficiently allocate risks and social costs, ensuring protection for victims, incentives for production, and technological innovation. I also consider other legal positions, e.g., the capacity to act, the ability to hold property, make contracts, and sue (and be sued). However, I contend that even assuming that conferring personhood on AIs finds widespread consensus, its implementation requires solving a coordination problem, determined by three asymmetries: technological, intra-legal systems, and inter-legal systems. I address the coordination problem through conceptual analysis and metaphysical explanation. I first frame legal personhood as a node of inferential links between factual preconditions and legal effects. Yet, this inferentialist reading does not account for the ‘background reasons’, i.e., it does not explain why we group divergent situations under legal personality and how extra-legal information is integrated into it. One way to account for this background is to adopt a neo-institutional perspective and update its ontology of legal concepts with further layers: the meta-institutional and the intermediate. Under this reading, the semantic referent of legal concepts is institutional reality. So, I use notions of analytical metaphysics, such as grounding and anchoring, to explain the origins and constituent elements of legal personality as an institutional kind. Finally, I show that the integration of conceptual and metaphysical analysis can provide the toolkit for finding an equilibrium around the legal-policy choices that are involved in including (or not including) AIs among legal persons.