| No monopolising, no enough knowledge creating. However, with monopolising, the knowledge can not be spread well. Intellectural property often meets the plight, It is necessary that law balances respective interests of intellectual property, not only right holders, protect their rights reasonably; but also desseminators, users, let intellectual products spread abroadly, and benefit society.In the process of patent license, right holders usually make use of advantage of monopoly to carry on"tying"for licensee. The patent license's tying is a type of general tying in the general commercial trade. The patent license's tying means patent holders demand licensee to receive products and service as a license condition that licensee don't want to buy, use. If the licensee don't accept it, patentee will refuse the license. Not only domestic antitrust law, but alse foreign antitrust law sometimes focuses on the irratinal phenomenion. Anti-Unfair Competition Law of the People's Republic of China provides"tying action"about the general commercial trade. Otherwise, Anti-monopoly Law of the People's Republic of China that was passed in August 30, 2007 also restrictly provides"tying action"in the commercial economy area. The law is known as"economic constitution". It can restrict irrational"tying action"in a certain extent. But compared to foreign relative legislition, our country legislation is imperfect. Firstly, the provision is too principle and have poor manipulation; Secondly, there is no anti-monopoly act aimed to intellectural property field, for example,"act"or"guide"matching the prior anti-monopoly law, that provides composing factors of patent license tying; Thirdly, there is no exception about"tying action"of patent licence in the anti-monopoly law of china, for example,"reasonable analysis","exempt system","grey article"and so on. So compared to foreign legislation, our country is a little deficient. American has"dual systems"way to regulate patent license tying. (1)"The Sherman Antitrust Act (1890)"and"The Clayton Antitrust Act (1914)"provide monopolization action principly; (2) Patent Law provides"misuse principle of right"; (3)"Antitrust Guidelines for the Licensing of Intellectual Property"concretely regulates"tying nature"in patent license. Europe and Japan also have"concrete analysis","exempt system", and"grey article"entering into the guide of patent license. The guide concretely analyses legality of"patent license tying".In all, according to the chance that Anti-monopoly Law of the People's Republic of China which was passed in August 30, 2007 , and the carrier of typical cases about patent license tying in domestic and foreign countries, patent license tyings are renewedly cleared up and classfied by the text. At the same time, it analyses composing factors of patent license tying that law should restrict or prohibit. In the course of patent license, the tying that breaches law must meet four factors: existing of dominent market, tying product and tied product being detachable and independent; existing of coercing; adverse influences to market competition. According to concrete cases, in addition, relative laws should consent to some legal tying in the patent license, mainly for public interests. Compared to relative foreign legislation, the text points out legislation of China is deficient, and advises China should perfect relative legislation, In the first place , patent law that will be amended should regulate"misuse principle of patent", and provide tying action nature; In the second place,"Anti-Monopoly Act of Intellectual Property"and"Reasonable Analysis Guideline of Patent License"should be legislated, and deeply analyse whether tying is legal about patent license or not.
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