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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。
The recognition of the abuse of intellectual property should be based on the clarification of the relationship between the exercise of intellectual property rights and the abuse of intellectual property. Although they are related to each other, they can not be simply equated, since the exercise of rights beyond the scope of intellectual property rights is not abusive behavior. Whether the intellectual property monopoly exercise of abuse constitutes a need for abuse depends on whether they are justified or not, and knowledge Misconduct of property rights is essentially different from abuse. To prevent abuse of intellectual property, we need to think about system rationality. The system concept of preventing intellectual property abuse is to solve the conflicts of interests of intellectual property rights on the basis of legal justice, to make correct judgments on conflicts of interest and legal justice and to find a balance between the realization of interests and the security of the order. Second, On the basis of the right to pay attention to the social function of intellectual property. Modern society not only needs to elevate the banner of protection of private rights, but also needs to pay more attention to the social functions of rights. In particular, it needs to pay attention to the relationship between social development and enhancement of the social functions of intellectual property.