Study On Anti-Monopoly Regulation Of Restrictive Clauses Of Patent License

In the era of knowledge economy,Intellectual Property Rights has become a part of the strategy of multinational enterprises in developed countries.As a common way to implement Intellectual Property Rights,patent licensing system plays an important role in stimulating innovation,promoting technological progress and promoting market competition.Based on the patent itself,however,the "natural monopoly" and pursue psychology,to maximize the value of patent proprietary business giants tend to impose restrictive clauses,when a patent license restrictions,eliminate competition,hinder technological progress,damage the interests of the licensee,abuse of intellectual property rights in the field of relevant market to form the monopoly position,obtain monopoly profits.In recent years,the emergence of Huawei's lawsuit against interactive digital case and Qualcomm's monopoly case has made the anti-monopoly protection of intellectual property increasingly important.The release of the draft of the anti-monopoly guidelines on the abuse of intellectual property issued by the anti-monopoly Commission of the State Council further strengthens the practical significance of this issue.Therefore,it is necessary to carry out in-depth research in this field,so as to construct and perfect the restrictive anti-monopoly regulation system of patent license in China,so as to regulate multinational companies to use patent advantages to impose restrictive "clauses to damage the rights and interests of Chinese enterprises,provide a good order of competition for the market,and promote the healthy development of the market environment.The article is divided into four parts.The first part is the overview part,which mainly covers the meaning of the restrictive clauses of patent license.From the perspective that restrictive clauses involve restrictive contents,the restrictive clauses are summarized as three kinds of restrictive clauses related to price,the acquisition and use of the licensed technology.and the improvement of the licensed technology and discusses the rationality of anti-monopoly regulation.The second part analyzes the main standards of the application of restrictive clauses to antitrust regulation,including the standards of competition damage and safe harbor.Summarize the relevant experience of the regulation of restrictive clauses of patent licensing in the United States and Europe by combing the latest revision of the antitrust guide for intellectual property licensing in the United States in 2017 and the EC Technology Transfer Block Exemption Regulation.The third part combs the development of the legal regulation of the restrictive terms of patent licensing in China,and puts forward the urgency of the anti-monopoly regulation of the restrictive terms of patent licensing in combination with the recent trade friction between China and the United States,the revision of the regulations on the administration of technology import and export,and the change of the legal regulation system of the restrictive terms of patent licensing in China.Compared with the latest development of the U.S.and European patent licensing restrictive provisions,analyzes the deficiencies in setting framework of the restrictive provisions,the factors to be considered in determining the restrictive provisions by using the principle of reasonableness,and the setting of the safe harbor system.In the fourth part,according to the deficiency of anti-monopoly regulation of restrictive clauses in patent licensing in China,the author puts forward four suggestions to improve the framework structure of restrictive clauses,clarify the main factors to be considered when determining restrictive clauses according to the reasonable principle,expand the application of "safe harbor" system and add restrictive clauses.