Research On The Regulation Of Anti-monopoly Law Of Restrict Competitive Behavior In Patent Licensing

The patent right is the legal monopoly right of the patentee. He can implement his patent by himself or authorize others to implement. Through patent licensing system, the patentee can not only receive financial rewards, but also can stimulate the patent innovation, promote technological advancement. At the same time it can make the market more prosperous. However, the patent is a natural monopoly right, it performance of great exclusivity in the course of the implementation. Thus, the patent holder would set a lot of restrictions in the patent licensing agreements. Within these restrictions, some are to give the patentee and licensee the scope of the application, in general, these restrictions are reasonable, but in some patent license agreements, the patentee will set a lot of unreasonable restrictions. These unreasonable restrictions not only can cause some damage to the licensee, but also have an adverse effect on competition market order, and thus these unreasonable restrictions should be subjected to antitrust regulation, these behaviors are collectively referred to restrict competitive behaviors in patent licensing.From the perspective of anti-monopoly law, restrict competitive behaviors in patent licensing can be reached through the monopoly agreement or the abuse of dominant market.position by patentee. The former is often shown as the agreement by the parties to reduce competition to some extent, including feedback, yield limit, limit price, market segmentation, cross license and patent pool and so on. And the latter include tying, refused to license, price discrimination, no doubt terms, etc. In order to maintain the order of competition and the public interest, The author will make a in-depth study on the behaviors which will restrict the competition in patent licensing,and put forward some related suggestions to The anti-monopoly law in China about the regulation to patent licensing.This article is divided into five main parts.The first part introduce the concept of patent licensing, and make a distinction between the reasonable restrictive behaviors and the unreasonable restrictive behaviors, point out the necessity and evolution of the anti-monopoly law on the adjustment to restrict competitive behavior in patent licensing.The second part introduces the anti-monopoly law’s methods to regulate restrict competitive behaviors in patent licensing. And then make an in-depth study. On this basis, the author put forward that we should make a reasonable analysis on restrictive behaviors.The third part on the basis of the framework of the anti-monopoly law in China, and list some typical restrict competitive behaviors through signing monopoly agreement, at last make a brief analysis on each behavior and provide the methods and the conditions to regulate the behavior.The fourth part lists the typical restrict competitive behaviors through the abuse of dominant market position. And then make a simple analysis on each behavior. But before this, author made a simple definition to the relevant market in patent licensing, and pointed out that the relevant market mainly refers to the technology market. As for the innovative market, although it has received increasing attention, it’s just a concept in theoretical, there are many difficult in the practice. So, it only can be an aid to the technology market.The fifth part put forward some shallow advices on the civil liability and administrative liability of the anti-monopoly law. In terms of civil liability, the author point out that the patent licensing contract’s validity should not be totally negated when it be regulated by the anti-monopoly law. Its validity should be combined with the purpose and its effect. We should make a detail analysis, and then affirm if it’s invalid or partially invalid. In terms of administrative liability, the author offered a proposal that the compulsory licensing should be used. And in order to use the compulsory licensing cautious, the author also put forward some applicable restrictive conditions.