Study On The Regulation Of Tying Arrangement In Patent Licensing In Anti-monopoly Law

According to the traditional theory of anti-monopoly law, tying arrangement causes the following effects on Competition: the enterprise’s market force will expand into other markets unreasonably; Tying arrangement can be used barriers to entry, the exclusion of other enterprises related products sales opportunities, or fail to provide increased barriers to entry package of products of the enterprise, to avoid price regulation.Tying arrangement is always the main target of antitrust law in many countries,the main reason is that the subject will be unreasonable tying a market expansion of market power. In this case, the tied-in product in the market competition, other competitors will be suppressed, the dominant undertaking at the same time, the dominant undertaking more easy to grab the monopoly interests. This is the anti-monopoly law usually attitude of tying behavior.However, in 1940 s, known as the "Chicago school" of the scholars of the theory questioned. They think that tying will only bring disposable profit to the merchant, it will eventually abandoned because of the increase in the overall price bundled goods "by the consumer. From this point of view, the implementation of tying behavior of market main body, tying the benefits do not last long, on the contrary, the long run tying to implement may also bring negative influence. The "Chicago school" point of view, although not all of the negative impact of the market that tying behavior caused, but it has shaken the anti-monopoly law attitude of tying behavior rooted.Tying must be negative? The answer is no. That is in addition to the negative impact of tying, is of positive significance in terms of the market may also be. On the one hand, the combination of more than two kinds of merchandise sales, such sales compared with the sales, to save operating costs of market players. On the other hand, by tying behavior, the operator can obtain excess profits, while the excess profits obtained will further stimulate enthusiasm of operators to invest in innovation. In addition to the tying can effectively control the quality of the product or service, the operator in order to maintain the product quality and reputation, will require consumers to buy related products. It can be said, the goods and services of tying, both the positive also has its negative side. When there is cross patent and tying behavior, the situation is more complex.Whether the provisions of the patent license tying illegal elements of, or exemption from the angle of the patent license tying regulation. Or to analyze the rationality of "intermediate zone" is more comprehensive. Can be found in three cases, the method of classification is not independent of each other, is not completely clear boundaries. Regulations of the constituent elements need to dominate the market of patent licensing, power market considerations in the intermediate zone is of great significance. Therefore, three kinds of regulation method contains the type selection, are consistent in essence. They have a common basis of law and Economics--utilitarianism. So in the USA, EU, Japan and Germany legislation will find, although the specific regulation on patent license tying the differences, but the theoretical basis of regulation is the same. The regulation on patent license tying, we should consider the incentives for innovation fully. Considering the positive effect on market competition. This is also the reason of the patent right by the anti-monopoly law exemption. But the market factors, such as the relevant market, market share, market power, in the regulation of specific methods are more or less reflected.