从中国反垄断法视角构建专利积聚反竞争效应的 评估框架

In the era of knowledge economy, patents, as production resources, have become the focus of competition.At the same time, market competition has undergone significant changes: it has shifted from competition based on products and services to competition relying on intellectual property rights such as patents; From competition of unitary patent to competition of patent accumulation .Patent accumulation refers to the behavior of the operator to obtain the target patent through merger, equity acquisition, direct purchas e, independent research and development, exclusive authorization and so on, to achieve the convergence and centralized management of patents, and to improve the overall competitiveness of patents. Patent accumulation is a process in which operators integrate technical resources for the purpose of obtaining patents. To a certain extent, it can prom ote the full use of resources, improve market efficiency, enhance the market competitive ness of operators and improve economic benefits. And from the view of anti-monopoly law, it could incur a series of monopoly risks. Patent accumulation will change the marke t competition pattern of patents and products, cause the source monopoly of patent reso urces, lead to the uneconomical scale of related industries and technical fields, unreasona ble market competition structure, and inhibit the anti-competitive effects such as technolo gical innovation. It is key to distinguish the “positive and disadvantages” of patent accum ulation on market competition .It is the premise and basis of the regulation of monopoly of patent accumulation, and can prevent and control the source monopoly of patent resources, and reduce the anti-competitive risk of patent accumulation. However, In the static and structural analysis framework of Anti-monopoly law base d on the relevant market and market share elements has many difficulties in evaluating the anti-competitive effect of patent accumulation with dynamic development characterist ics.In the analysis of the related markets, the method based on the price theory is challen ged in the analysis of the technology market and the innovation market, and analysis of the regional market is diluted because of the intangible and unlimited replicability of the patent, and under the influence of the Internet economy. In the analysis of market share, due to the rapid technological change, the market share of operators is not stable, which cannot accurately reflect the market force of operators. So, based on the characteri stics of the patent has time and change fast, the analysis path of the anti-competitive effect of patent merger should weaken the function of the relevant market definition, market share and market concentration, and focus on the examination of patent element s, from the accumulation of patent, market efficiency and market competition effect three dimensions to establish an analysis framework from the inside to the outside logic.