The Basic Position That China Embraces Towards Regulating Intellectual Property Licensing Restraint

Intellectual Property Law and Anti-monopoly Law have the common value goals to promote innovation and to enhance the consumers'welfare. Intellectual Property Law achieves these goals by protecting creators'previous rights, however, Anti-monopoly Law achieves these goals by protecting competition. On the other hand, Intellectual Property Law protects monopoly and limits competition, however, Anti-monopoly protects competition and restricts monopoly, so there is inherent contradictions between the two laws. When the intellectual property is executed in inappropriate ways, it will be punished by the Anti-monopoly Law.Authorizing other people to use the intellectual product is one of the most common ways to execute the intellectual property. During the licensing process, the licensor may set lots of restrictions to the licensee. Anti-monopoly Law would pay close attention to those restrictions clauses which may do harm to the fair competition in the relevant market.The basic position that a country embraces towards regulating intellectual property licensing restraint relates to the pattern of its foreign trade. Generally, net technology importers will tend to over-regulate anticompetitive activity relative to intellectual property licensing restraint, while net technology exporters will tend to under-regulate anticompetitive activity relative to intellectual property licensing restraint.At the present time, China is a net technology importer, because his external depending degree for technology exceeds 50% and the ability of his innovation is not strong. Foreign enterprises abuse their intellectual property rights in china in many ways, such as patent pooling, no-challenge clauses etc. Abusing of intellectual property rights has had a very bad influence to our domestic enterprises.Anti-monopoly Act of China should take strict attitude towards anticompetitive activity relative to intellectual property licensing restraint, that is applying per se illegal to various restraint activities such as patent pooling, tying arrangements, exclusive grant-back and no-challenge clauses.