Licensing Of Intellectual Property

Licensing is the most important legal method in transfer and usage of intellectual property. Having regard to the level of research on licensing of intellectual property in China, the author attempts to establish uniform theory on licensing of intellectual property through composing this dissertation.In order to achieve the purpose, the author not only compares the concept of property in Germany with the counterpart in Anglo-American legal system, license with license contract, the concept of monopoly in economics with the counterpart in antitrust laws, and object market with medium market, but article 85 and article 86 of the Treaties of Rome with article 1 and article 2 of the Sherman Act in U.S. A.The dissertation is divided into six chaptersChapter 1 discusses the immateriality, one of characteristic intellectual property. By challenging the conclusion of Professor Zheng on immateriality of intellectual property, the author deems it is more scientific to distinguish the difference between the immateriality of object of intellectual property and the immateriality of intellectual property. On the basis of difference, the author divides the subject-licensing of intellectual property- into two parts. One is static state of intellectual property, in which the owner can employ the intellectual property by oneself;the other one is dynamic state of intellectual property, in which the owner of intellectual property can permit licensee to employ intellectual property of the right package. The former is regulated by intellectual property law, the latter is by contract law. Hence, considering that the whole theory of licensing of intellectual property is building upon the contract law, it is more advisable to notice specific qualities and attributes of intellectual property.Chapter 2 summarizes the theory of licensing of intellectual property. Atfirst, by comparing the concept of property in Germany with the counterpart in Anglo-American legal system, author defines the meanings of licensing of intellectual property. Then, the author compares the subtle difference between not only "license" and "license contract", but the two ways of interpretation about "license" from English to Chinese. At last, as differentiation between Verpflichtungsgeschaft and Verfugungsgeschaft in German legal theory an analysis tool, the author puts forward basic conditions that validate a license.Chapter 3 categorizes license by two standards, and introduce related legal issues in patent license, trademark license, and copyright license, which is quarried out from ^WIPO Intellectual Property Handbook: Policy, Law and Use)) .Chapter 4 discusses the relationship between antitrust law and anticompetitive clauses in licensing of intellectual property. At first, the author introduces the reason and the fashion of anticompetitive clauses in licensing of intellectual property under business background. The author then analyses inability of contract law to adjust anticompetitive clauses and the season of inequality between licensor and licensee in the trend of confining freedom of contract in modern society. After that, through analysis of intellectual property in economic terms, the author convinces that essence of intellectual property is monopolistic right in the economic standard. However, in antitrust terms, intellectual property does not violate the antitrust law, because intellectual property and antitrust law share the same purpose of promoting innovation and enhancing consumer welfare. At last, the author concludes that the anticompetitive clauses in licensing of intellectual property should be adjusted by antitrust law.Chapter 5 compares article 85 and article 86 of the Treaties of Rome with article 1 and article 2 of the Sherman Act in U.S A. under the function principle of comparative legal science, and by comparison concludes that court plays an important role in antitrust law. After that, the author introduces the common anticompetitive clauses in licensing of intellectual property.Chapter 6 sums up the whole dissertation.