The Reaserch On The No-challenge Clause

Since China decided to use processing and manufacturing as the starting point for economic development in the 1980 s,China has rapidly changed the status quo of the relatively backward economic development.However,with the advent of the world financial and economic crisis,China's pattern of manufacturing,processing,and export as the main economic growth point has been hit,and it is imperative to develop new technologies and achieve industrial transformation.In this case,patent licensing trade has also become a new economic growth point.Especially in the recent trade dispute between China and the United States,the dispute between the two parties on the licensing contract for intellectual property has not stopped.In the United States,the European Union,Japan,and other developed countries,as well as developed regions,the relevant provisions concerning patent uncontested clauses have been relatively complete,forming a common practice in the world.However,in China,the patent is not a question of questioning is still a relatively new issue.Since China's judicial interpretation of the contract law introduced in 2004 mentioned that the contract that does not question the terms has been invalidated,no relevant legal provisions on this issue have been issued.It does not question whether the terms are effective or not,and how their judgment standards are relatively novel in our country.However,due to China's industrial restructuring and the need for trade negotiations,itis very urgent to not question the requirements of the relevant provisions of the provisions.This article proposes its own opinions and suggestions on the relevant provisions of China's non-questioning clauses.Although there are still many differences and uncertainties in the legislation of countries that do not question the terms of rights,international conventions have not explicitly made legislation on this issue at the international law level.However,it can still be seen that the major countries in the world have adopted two different models.The models of civil law systems represented by Japan and Germany,and the models of Anglo-American law systems represented by the United States and the European Union,respectively.The continental legal system model represented by Japan and Germany is based on the relevant principles of the contract law and the purpose of the legislation of the patent law.It is determined that the patent is not in doubt at the time of signing,and the licensee needs to determine that the clause is invalid.In accordance with legal procedures to sue the court.The countries of the United Kingdom and the United States represented by the United States and the European Union take the public interest in the Anti-monopoly Law and the Anti-Unfair Competition Law as the basis for judgment.It is determined that the patent is not in doubt at the time of signing,and the licensee wants to recognize the clause.If it is valid,it shall follow the legal procedures to apply to the relevant department or file a lawsuit with the court.There are many unreasonable provisions in the existing legislation on the provisions of the rights indisputable clauses,such as the provisions of the "Contract Law" and related judicial interpretations,and the provisions of the "Anti-Monopoly Law" and the "Anti-monopoly Guidelines of the State Council Anti-Monopoly Commission on Abuse of Intellectual Property Rights." Conflicts,such as legislative oversimplification,lead to difficulties in implementation in practice.In particular,the newly issued Antimonopoly Guidelines of the State Council Anti-Monopoly Commission on the Abuse of Intellectual Property Rights has clearly stipulated in Article 9 the definition and judgment criteria of the unquestionable clauses.However,compared with the relevant regulations of other countries,the clause is There are stilldeficiencies in judgment standards and applicability.For the problems existing in China's current legislation,the author put forward relevant suggestions.First of all,the judicial interpretation method should be used to clarify that China does not dispute the law on which the terms are judged and avoid legal conflicts at the legislative level.Second,it clearly does not question the validity of the clauses from the date of signing,and improves the relevant recognition procedures.Finally,the recognition criteria specified in Article 9 of the Anti-Monopoly Guideline of the State Council Anti-Monopoly Commission on Abuse of Intellectual Property Rights shall be further improved to ensure its enforceability.This article first presents a simple statement on the status quo at home and abroad without questioning the terms,and then puts forward relevant opinions and suggestions based on the requirements of the international conventions and the relevant provisions of the comparative law in terms of the judgment model,judgment standards,and judgment procedures of China's unquestionable clauses.