| China is one of the major receivers or transferees in international market for technology transfer Under such a background, it is of particular practical significance for China to explore the restrictive clauses contracts for international tech transfer or license and the approaches to which those clauses are regulated. Theoretically, those clauses have reflected the paradoxical relationship between intellectual property and antimonopoly which is that intellectual property constitutes a justified monopoly and therefore is an exception to antimonopoly;nevertheless, an exercise of intellectual property right should not hinder competition, otherwise it is also regulated on the rationale of antitrust laws. Such a problem is manifested more in dealing with the restrictive clauses in international tech transfer or license agreements. There have existed two fundamental standards for assuming the restrictive clauses or practices, namely the competition standard held by developed countries and the development standard by developing countries. The disagreement as such has hampered the concerted efforts at an international level to cope with the problem. In contrast, ever since 1995 the U.S.A. took a lead in national legislation in this respect, EU, Japan and Taiwan(China) has followed the lead and noteworthy is that there are recent legislative developments in this field. Generally there are more similarities than differences among those legislations. China, in accordance with the TRIPS, has exerted control over the restrictive practices in tech transfer by the chapter for tech contracts in Contract Law, the 2004-revised Foreign Trade Law and concerning administrative regulations and judicial interpretations in recent years. As far as those norms themselves are concerned, they are successful in general, meanwhile with room for improvement in legislative notion, the regulating mode, the legislation technique and certain aspect of the content itself. |
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