The Research Of The The Accession Of Patent Base On The Restrictive Clauses

In the process of reaching patent license agreement, licensor in pursuit of maximum economic benefits, frequently add some restrictive clauses into the contract in order to limit the space of Technical Retrofit by licensee by virtue of its dominant position. And then there comes a range of issues between the restrictive clauses and the accession of patent, when licensor set the rules about that licensee has no right to make improvements to the licensed technology or clear up the ownership of those achievements. Such as whether restrictive clauses are valid? Who would own these achievements when the accession of patent are made out? How would the licensee and the licensor share the benefit? Not yet have a complete and rational system to solve these problems in our current law, so, in this paper, based on the restrictive clauses theory, the author will research about the accession of patent from four aspects,hoping do something significant on above problems.First, by sorting out the relevant terms about restrictive clauses in patent license and the accession of patent, analyzing the present ascription of under the restrictive clauses:the present ascription of accession of patent under the illegal restrictive clauses and present ascription of accession of patent under the legal restrictive clauses.Second, through the interest balance to examine the present ascription of accession of patent under the illegal and legal restrictive clauses, discovering that our existing laws is lack of balance of interests mechanisms about restrictive clauses in patent license and the accession of patent. The stipulation, responsibility in the void contract and liability for breach in the valid contract, those means of the balance of interests can not meet the real needs.At the last, through analyzing the legal constitution of accession of patent and the legal effect of its system,taking promoting technological progress and the balance of interests as principle, taking value of the improvements to the licensed technology as standard, build a set of specific rules of balance of interests.