On Regulation Of Monopoly Agreement In Patent License

The patent law endows a kind of monopolizing authority to the inventor orpatentee and makes them get considerable economic returns by institutionalarrangements in market through patent licensing, in order to stimulate innovation,technological advancement and competition. However, due to the exclusivity of thepatent, restrictions are frequently used in the patent license agreement. Somerestrictions are for prescribing a limit to the extent of patent licensing, while theunreasonable restrictions will seriously harm the interests of the licensee and hamperfree competition, which is the main reason for the conflicts between patent licensingand anti-monopoly law. Some of these restrictions perform in the form of monopolyagreement and cause suspicion of conspiracy. So this dissertation studies how toregulate this kind of unreasonable restrictions in patent license agreement by theAnti-monopoly law.They are just3years after the promulgation and implement of anti-monopoly lawof China, so the regulation on the issue is not very comprehensive. Therefore, thedissertation deeply studies the regulation against the monopoly agreements in patentlicensing on the basis of comparative research on the relevant provisions of the UnitedStates and the European Union. The ‘per se rule’ and the rule of reason are the basicprinciples used to regulate the monopoly agreement in patent licensing in USA, whileEuropean Union applies a system of general prohibition and special exemption.However, these two systems reflect a common trend, which is taking the methods ofrationality analysis for the majority of monopoly agreement to analyze the efficiencyof monopoly agreement and if it is able to compensate for or exceed the negativeeffects of restricting competition. In our country, the anti-monopoly law adopts asimilar regulation system with the European Union for monopoly agreements. Basedon the anti-monopoly law, and combined with the special feature of intellectualproperty rights, the regulation guide of monopoly agreements in patent licensing ofChina can be built and completed. The basic ideas included in this dissertation are:Firstly, establishing an appropriate market share scope in the "Guide", the collusionwithin the scope can be presumed to be lawful directly, which does not need toappraise the competitive effects and thus excluded from the regulation ofanti-monopoly law; Secondly, enumerating specific kind of agreement which are prohibited by laws in most cases, while set case analysis as a supplement. Then, theleft are the agreements which need to analyze the rationality individually. Rationalityanalysis can be carried out according to the conditions of exemption set by law.Except for the current exemption conditions, another two additional recommendationsare proposed either.