An Analysis Of Patent Cross Licensing From The Perspective Of Anti-Monopoly Law

This paper investigates the application of the analysis of patent cross-licensing from the perspective of anti-monopoly law on the basis of comparative law, also, puts forward some suggestions to perfect our county's legislation.The first chapter analyzes the related concept of patent cross licensing. It focuses on the basic concept of patent licensing and patent cross-licensing. In addition, the paper also analyzes the similarities and differences between patent cross-licensing and patent pool, cross-licensing and grant-back. The definition and discrimination of the above concepts lay foundation for the discussion in the below.Chapter Two analyzes the positive and negative effects of patent cross-licensing. The paper points out that patent cross-licensing helps to clear the impediment patent, to promote innovation, to reduce the risk of infringement, and to avoid infringement action. Meanwhile, patent cross-licensing is prone to produce negative influence, such as to form transverse monopoly, to reduce the enthusiasm of research investment, to build barrier for third party to enter the relevant market, to cause inefficient use of patent technology, and so on.Chapter Three observes anti-monopoly rules of patent cross-licensing in monopoly law from the perspective of comparison. The paper focuses on analyzing several coutries and regions'related legislation and draws a preliminary conclusionChapter Four points out that the anti-monopoly analysis of the restricting action in patent cross-licensing agreements include the following steps under the guidance of reasonable principle:firstly, defining the relevant market ,secondly, investigating whether the parties of the agreement have dominant market position, thirdly, considering comprehensively the ways of restricting action, the restriction degree, whether there are competitive relations between the parties in the agreement, the competitors' response, the potential competitive factors, the subject status of the parties in the patent cross-licensing agreement, the macro industrial practices and industrial development degree, and other factors.forthly, considering the exempt reasons, analyzing the positive effect of restricting action if there were exempt reasons, and comparing this positive effect with the anti-competition influence. finally,making a decision on the basis of the above analysis.Chapter Five are some suggestion for the legislation in our county. The paper summarizes the implementation of the Anti-monopoly Law in 2008 made general provisions to the anti-monopoly problem of the abuse of intellectual property rights. The paper thinks that the Anti-monopoly Commission needs to formulate the corresponding guidelines timely. When completing the guidelines involving anti-monopoly of patent cross-licensing, we should adhere to reasonable principle, coordinate the relationship of antimonopoly law and patent law appropriately, and pay attention to the differences of different industries.