Anti-monopoly Law Regulation Of Restrictive Clauses In Intellectual Property License

The relationship between intellectual property rights and anti-trust laws has been attracting many scholars to study it. And in particular, with intellectual property rights playing an increasingly big role in the socio-economic development, the antitrust issues in the field of intellectual property have become increasingly prominent. In Intellectual property rights trade, there are restrictive clauses in the intellectual property license agreement prevailingly. These restrictive provisions are important reasons which antitrust review arising from. Our country has been begun to be troubled by the restrictive clauses which are from the technological licensors of foreign countries in the process of technology import on the initial stage of reforming and opening-up, and this trouble has continued until now. Although government has some legislation at that time, the problem has not been fundamentally resolved. As China's enterprises own independent intellectual property rights more and more, the domestic trade of intellectual property rights is growing prosperity, and our country often becomes the licensor of technology in international trade of the intellectual property right too. So, how to determine which are restrictive clauses reasonably and regulate them to create a fair and orderly market of intellectual property rights has become a problem to be solved urgently. This article proceeds with the relationship between Intellectual property rights law and anti-monopoly law to expound the concrete principle which is used to balance the intellectual property rights and anti-monopoly law, and then applies the principle to regulation of restrictive clauses. Finally, combining with the analysis of the legislation of other countries or regions, it offers the legislative proposals for the regulation of restrictive clauses in China. Focusing on this idea, the article is divided into three parts:The first part contains theoretical analysis on how the anti-trust law is used to regulate the restrictive clauses in intellectual property licensing. First of all, it analyzes the concept of restrictive clauses and international controversy about it, and explains the reasons for its existence, and points out that its legitimacy depends on specific analysis. Then it analyzes the complex relationship between intellectual property rights and anti-monopoly law on macro level, and gives an analysis of the theories which have been put forward by scholars to coordinate intellectual property rights with anti-monopoly law. So it comes to the conclusion that the way to resolve contradiction between them must be obtained from their same purpose. Finally to point out that this conclusion is also applied to the anti-monopoly law regulation of restrictive clauses.The second part contains analysis on how the restrictive clauses been regulated by anti-monopoly law in other countries from a point of view of comparative law. It analyzes the anti-monopoly basic Law of three countries and regions, which are the United States, the European Union and Japan specifically, and their anti-monopoly regulations or guidelines on intellectual property licensing which are drawn up by their anti-monopoly law enforcement departments. Their commonalities have been found out after they have been compared. These common points are very useful to our legislation.The third part contains the legislative proposals for the regulation of restrictive clauses. It shows the efforts to regulate the restrictive clauses made by our country and the current legal system of regulation of restrictive clauses at first. And then the various defects of these laws are pointed out. Finally it discusses how to solve these problems. The basic role of anti-monopoly law should be established in the regulation of restrictive clauses. And we must enact specialized anti-trust regulation against intellectual property licensing. When we formulate regulations, it is not only necessary to learn from Europe, the United States and Japan, but also to consider the reality of our country.