legislation regulation of antimonopoly law on intellectual property license (in english)
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Legislation Regulation of Antimonopoly law on intellectual property licenseTRANSCRIPT
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Legislation Regulation of Antimonopoly Law on Intellectual Property LicenseByLuo Jing HUNAN UNIVERSITY
2008
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by
LUO jing
BL (Xiangtan University) 1996
ML (Hunan Normal University) 2003
A dissertation submitted in partial satisfaction of the
Requirements for the degree of
Doctor of Law
in
Economic Law in the
Graduate School
of
Hunan University
Supervisor
Professor Llbuyun
October, 2008
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Summary
Intellectual property is manifested as a state of statutory monopoly, and under certain conditions, this statutory monopoly may be transferred.
It turns into an economic monopoly that the anti-monopoly law focuses on. When licensing externally, intellectual property owners may use intellectual pro
The advantage brought by the right to engage in restrictive behavior in the negotiation process of intellectual property licensing agreements, it is necessary
It is necessary to implement anti-monopoly regulations. As the intellectual property system and antitrust law share innovation, efficiency, and competition
Therefore, the anti-monopoly laws and regulations on the licensing of intellectual property rights are also based on the above-mentioned basic categories.
Quantity standard. At the same time, the anti-monopoly law is a legal department that adjusts the order of the market economy based on the public interest.
Protecting consumer welfare is a manifestation of its justice. As a result, the anti-monopoly laws and regulations governing the licensing of intellectual pro
The following principles should be followed: (1) Licensing acts as an obstacle to competition, but it can achieve significant innovation efficiency and thus
Improve the overall welfare of society, and these behaviors are essential to achieve these efficiencies.
In the choice, the harm to consumer welfare is the least, under these premises, the permission should be allowed;
(2) If the effect of a certain behavior on innovation efficiency is neutral or uncertain, the
(3) In any case, the behavior cannot lead to permanent and comprehensive elimination of competition.
Contention. The above principles also apply to new economy industries.
China is currently a technologically latecomer country. It must achieve economic and technological advantages as a latecomer and improve its own
In addition to independent innovation, the introduction of technology is the only way for our comprehensive national strength. From this point of view, inte
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Licensing often means that Chinese companies act as technology importers and intellectual property owners in developed countries act as licensors.
Reach an agreement on the authorized use and sale of a certain technology. At the same time, developed countries are paying more and more attention to in
Rights to consolidate and improve their international economic status, large multinational companies also use intellectual property strategies
As a means of expansion and development. Based on the above theoretical analysis, refer to and learn from the success of other countries and regions
Experience, combined with my country’s current status quo, my country’s current anti-monopoly regulations on intellectual property licensing should be
The opening of the market and fair competition are the primary goals. Through the protection of the competitive environment, my country’s independent in
The implementation of the strategy protects national interests and enhances the country’s economic strength and competitiveness.
In the context of antitrust French, intellectual property owners engage in anti-competitive behaviors in intellectual property licensing agreements.
It can be divided into two categories: abuse of dominant position and restriction of competition agreement: the former includes tying, refusal of license, and
Regarding the restrictive clauses in the licensing of such intellectual property rights, it is generally reflected as having an advantage
Status actors use the exclusivity of intellectual property rights to repel competition in related industries or damage the licensed
People’s innovation enthusiasm maintains their monopoly position; the latter includes feedback, output restrictions, price restrictions,
Excluding licenses, territorial restrictions, restrictions on the use of domains, etc., such behaviors are often reflected in the agreement between the two parti
To reduce competition to a certain extent, therefore, it must be classified from the perspective of whether the two parties to the license agreement are comp
And they are subject to different anti-monopoly laws and regulations. In addition, technology pools and standardization organizations may also
Harmful, technology pooling and technology standards involve both abuse of dominance and agreements that restrict competition
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In the new economy industry, the dominant position of technical standards is particularly highlighted. The anti-monopoly law must
Strictly pay attention. At present, the degree of anti-monopoly regulations on intellectual property licensing in the United States, the European Union, and J
To be lenient and to hold a position in favor of intellectual property rights. This is a change that conforms to the self-interests of these countries and regions
However, our country should make slightly tighter regulations in light of the national conditions on the above specific issues.
Keywords: Intellectual Property Licensing; Anti-Monopoly Law; Efficiency; Innovation; Consumer Welfare; Legislation
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Abstract
Behaved as an legal monopoly, under certain circumstance intellectual property
rights might transform into economic monopoly that antimonopoly law would regulate.
In external license, the intellectual property rights holders might restrict the
competition in the negotiation of intellectual property rights license protocol by the
advantage of intellectual property rights.IP system and antimonopoly law sharing the
same goal of innovation, efficiency and competition, therefore the antimonopoly
regulation of IP license contracts should regard those concepts as criterion.
Furthermore, being an legal branch of protecting public interest, the antimonopoly
regulation to IP license contracts should comply the model as following:(1)Doing harm
to competition, the licenses can realize the innovation efficiency and improve the
whole welfare of society. In the mean while, the license is absolutely necessary to
realize the efficiency and does the least damage to consumer welfare. Under these
premises, the license should be permitted. (2) If certain license is neutral or dubious to
innovation efficiency, the antimonopoly judgement of it should based on consumer
welfare.(3)In no case, the license should banish competition permanently and entirely.
The above model can also apply to new economy.
The technical level of China is lower than that of the developed countries. At
present, in order to improve our comprehensive strength, we need to get license from
the IP holders in developed countries besides independent innovation. From this point
of view, the Chinese enterprises are the licencees and the IP holders in developed
countries are the licensers. At the same time, the developed countries pay more and
more attention to the function of IP in consolidating and advancing their super position
in technology and economy. The big multinational companies use IP strategy as means
to enlargment and development as well. Grounding on the above theory model,
referencing of successful experiences of else countries and areas, combining the
actuality of China, the openness of market and equal competition should be the most
important goal in our current antimonopoly regulation. Our economic and competitive
strength should be advanced through competitive environment protection, independent
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innovation strategic promotion and national interest protection.
In term of antimonopoly law, it can be divided into two categories of which the
former is the abuse of preponderant position including articles on tying, price
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discrimination and challenging the validity of IP, For licensing of intellectual property
rights in such restrictive clauses, generally have a dominant position as reflected in the
behavior of people through the exclusive intellectual property rights, to exclude
competition in the industry, or damage to the licensee's innovative initiative to
maintain its monopoly status ;the latter is monopoly agreement (ie Cartel) including
grant back, restriction on output, price, terrain and usage field. Such behavior is
often reflected in the agreement between the two sides to a certain extent, reduce
competition and, therefore, must begin with the license agreement the two sides is
whether to classify the perspective of competitors, respectively, and anti-monopoly law
be different regulations. In addition, IP pools and integration of IP to technical
standards can also bring new restrictive problems of competition, it is not only related
to abuses of dominant positions, including restrictions on competition agreement, but
in the new economy industries, particularly highlighted the dominance of technical
standards, strict anti-monopoly law to be concerned about this.so antimonopoly law
must regulate all of these behaves. currently, America, Europe Union (EU) and Japan
have relax the regulation of IP license and hold the standpoint in favor of the licensers
according with the benefits of those counties and districts, but China must carry out the
tighter regulation considering the situation of a country.
Key Words: intellectual property license ; antimonopoly law ; efficiency ;
innovation ; consumer welfare ; legislation regulation
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contents
Summary................................................. .................................................. .................... I
Abstract ................................................. .................................................. ....................II
Chapter 1 Introduction... .................................................. ...............1
1.1 Research background and significance... .................................................. 1
1.1.1 Research background ... .................................................. ...1
1.1.2 Research significance............................ .................................................. ..2
1.2 Current research status at home and abroad............................. .................................................3
1.2.1 Status quo of foreign research............................................ .............................................3
1.2.2 Current status of domestic research............................................ .............................................7
1.3 Basic concepts and main research content... ....................................9
1.3.1 Definition of basic concepts............................................ .............................................9
1.3.2 Main research content............................ .............................................9
1.4 Research methods and innovations............................................ ............................10
1.4.1 Research methods ... .................................................. 10
1.4.2 Innovation points............................................ .................................................. ....11
Chapter 2 General Theory of Intellectual Property Licensing Anti-monopoly Regulations... ...13
2.1 Technological Innovation and Legal System............................ ........................................13
2.1.1 The general relationship between technological innovation and legal systems... .................13
2.1.2 Intellectual property and its incentive mechanism for technology...................................... ..................16
2.1.3 Anti-monopoly Law and Technological Innovation... ..................................19
2.2 Theoretical Analysis of Anti-monopoly Regulations in Intellectual Property Licensing... ...........twenty one
2.2.1 Interpretation of efficiency in economics......................................... ..................................twenty one
2.2.2 Efficiency trade-offs and consumer welfare in antitrust law... ............twenty four
2.2.3 The basic principles of intellectual property licensing anti-monopoly laws and regulations... .......29
2.2.4 The market definition of intellectual property licensing anti-monopoly laws and regulations... .......32
2.3 The special provisions of the intellectual property licensing anti-monopoly regulations in the new economy...35
2.3.1 The concept and characteristics of the new economy ... ..................................35
2.3.2 Theoretical disputes about the new economy and anti-monopoly law... ...............39
2.3.3 Intellectual property market power and anti-monopoly regulations under the background of the new economy...42
Chapter 3 Macro-Analysis of China's Intellectual Property Licensing Anti-monopoly Laws and Regulations... .........46
3.1 The background and current situation of China's intellectual property licensing......................................... ........................46
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3.1.1 The current economic background of intellectual property licensing in China....................................... .............46
3.1.2 The current legal background of intellectual property licensing in China....................................... .............48
3.1.3 The current status of intellectual property licensing in my country and its challenges to relevant legislation...53
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3.2 The basic value and target system of China's intellectual property licensing anti-monopoly laws and regulations under the TRIP S framework...563.2.1 TRIPs and China's anti-monopoly laws and regulations for intellectual property licensing... ..56
3.2.2 The basic value of China's intellectual property licensing anti-monopoly laws and regulations... 58
3.2.3 The target system of China's intellectual property licensing anti-monopoly laws and regulations... 60
3.3 The choice of China's intellectual property licensing anti-monopoly legislation and the principle of illegal identification...62
3.3.1 Mode selection ... .................................................. 63
3.3.2 Principles for the determination of violations............................................ ...........................................64
Chapter 4 Anti-monopoly Legislation Regarding Abuse of Market Power in Intellectual Property Licensing...67
4.1 Anti-monopoly legislation on tying in intellectual property licensing... ........67
4.1.1 Definition of tying behavior in intellectual property licensing...................................... ..................67
4.1.2 The United States, Europe and other countries and regions have anti-monopoly regulations on tying in intellectual property licensing...68
4.1.3 Anti-monopoly Law Analysis of Tying in Intellectual Property Licensing ... .....73
4.1.4 Suggestions on anti-monopoly legislation related to tie-in sales in my country... ...........76
4.2 Anti-monopoly legislation that unilaterally refuses to license... ........................77
4.2.1 The definition of anti-monopoly law for unilateral refusal to license intellectual property rights... .......77
4.2.2 Relevant legislation and judicial practice in the United States........................................ .......................78
4.2.3 Relevant legislation and judicial practice of the European Union........................................ .......................83
4.2.4 Relevant legislation in Japan... ........................................88
4.2.5 Analysis of Anti-Monopoly Law on Intellectual Property Refusing to License... .......88
4.2.6 Suggestions on anti-monopoly legislation for the refusal of intellectual property rights in my country ...91
4.3 Anti-monopoly legislation on price discrimination clauses in intellectual property licensing... .97
4.3.1 Definition of anti-monopoly law on price discrimination clauses in intellectual property licensing ... 97
4.3.2. The U.S. and EU's anti-monopoly regulations on price discrimination clauses in intellectual property licensing...99
4.3.3 Anti-monopoly Law Analysis of Price Discrimination Clauses in Intellectual Property Licensing ...102
4.3.4 Suggestions for anti-monopoly legislation on price discrimination clauses in my country's intellectual property licensing ... 104
4.4 Anti-monopoly legislation that does not challenge clauses in intellectual property licensing... ..105
4.4.1 The meaning of the non-questioning clause in the intellectual property license...................................... ............105
4.4.2 The United States and the European Union have anti-monopoly regulations on non-questioning clauses in intellectual property licensing...10
4.4.3 Anti-monopoly law analysis of non-questioning clauses in intellectual property licensing ...109
4.4.4 Suggestions for my country’s anti-monopoly legislation without questioning clauses...................................... ............110
Chapter 5 Anti-Monopoly Legislation Regarding Anti-competitive Agreements in Intellectual Property Licensing ... 112
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5.1 Anti-monopoly legislation on grant-back clauses in intellectual property licensing........................ ...112
5.1.1 The definition of grant back in intellectual property licensing... ...112
5.1.2 Legislation and judicial practice on grant back in the United States, Europe and other countries and regions...113
5.1.3 Anti-monopoly law analysis of grant-back clauses in intellectual property licensing ... ...116
5.1.4 Suggestions for my country's anti-monopoly legislation regarding grant-back clauses in intellectual property licensing...............119
5.2 Anti-monopoly legislation on exclusive licensing and geographical restrictions in intellectual property licensing...120
5.2.1 The definition of exclusive license and geographical restriction in intellectual property licensing...120
5.2.2 The United States, Europe and other countries and regions have anti-monopoly regulations on exclusive licenses and geographical restriction
5.2.3 Anti-monopoly Law Analysis of Exclusive License and Territorial Restriction in Intellectual Property Licensing ...124
5.2.4 Anti-monopoly legislation recommendations for my country's exclusive license and geographical restrictions........................127
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5.3 Anti-monopoly legislation on production restriction clauses in intellectual property licensing...1285.3.1 Definition of output limitation in intellectual property licensing....................................... ...............128
5.3.2 Relevant legislation and practices of the United States and the European Union on output restrictions........................ 128
5.3.3 Analysis of Anti-Monopoly Law of Production Restriction Clauses in Intellectual Property Licensing..............130
5.3.4 Anti-monopoly legislative suggestions on output restrictions in my country's intellectual property licensing...131
5.4 Anti-monopoly legislation on restrictions on the use of domains in intellectual property licensing...131
5.4.1 Definition of the field of use in the licensing of intellectual property rights....................................... ...............131
5.4.2 Legislation and practice in the United States, Europe and other countries and regions on the limitation of the field of use............131
5.4.3 Analysis of the Anti-Monopoly Law on the Restrictions on the Field of Use in Intellectual Property Licensing...135
5.4.4 Suggestions on anti-monopoly legislation on restrictions on the use of domains in intellectual property licensing in my country.............137
5.5 Anti-monopoly legislation on price restriction clauses in intellectual property licensing...138
5.5.1 Definition of price restrictions in intellectual property licensing....................................... ...............138
5.5.2 The legislation and practice of price restrictions in intellectual property licensing in the United States, Europe and other countries and region
5.5.3 Anti-monopoly Law Analysis of Price Limits in Intellectual Property Licensing... ..140
5.5.4 Suggestions for anti-monopoly legislation on price restrictions in intellectual property licensing in my country. 141
Chapter 6 Anti-monopoly Legislation Regulations on Licensed Acts in Technology Pooling and Technology Standardization...143
6.1 Anti-monopoly legislation on licensing activities in technology pools....................................... ............143
6.1.1 Technology pooling and its license... ...................................143
6.1.2 Analysis of Anti-Monopoly Law of Technology Consortium... .........................146
6.1.3 The United States and the European Union have anti-monopoly regulations on licensing activities in technology pools....... 147
6.1.4 Suggestions on anti-monopoly legislation for my country’s technology pooling and licensing...151
6.2 Anti-monopoly legislation for technical standardization and licensing... ........153
6.2.1 Technical standardization and intellectual property licensing... ....................153
6.2.2 Analysis of Anti-Monopoly Law in the Process of Technical Standardization...................................... ............162
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6.2.3 Anti-monopoly laws and regulations for intellectual property licensing of private technical standards organizations......................168
in conclusion................................................. .................................................. ...173
references................................................ .................................................. .................176
Acknowledgements... .................................................. ...189
Appendix A (a list of academic papers published during the degree study) ... ....................190
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Chapter 1 Introduction
1.1 Research background and significance
1.1.1 Research background
Theoretical background. In theory, the complex relationship between anti-monopoly law and intellectual property rights can be seen from the basic ec
Analyze from the concept of learning: intellectual property rights are granted to authors or creators to exclude others from using their own
Thoughts or inventions limit the spread of the work, thereby preventing others from benefiting from it. From an economic perspective
In other words, intellectual property prevents competition in the sale of a work or invention protected by intellectual property rights, thereby protecting
The right holder can sell it at a price higher than the marginal cost of copying the work. Indeed, in order to achieve
Incentives for inventions and creations, the intellectual property law grants the right holders the power to control prices to a certain extent, although this
It is not necessarily the same as market power. This situation means that if there is no intellectual property protection, the product will be
Sell under the premise of competition, so that more people will buy at a lower price.
On the other hand, a basic theory of market economy is: without considering market failures,
Free market competition will be the best means for effective resource allocation. The anti-monopoly law is based on safeguarding free competition
To ensure that the market is not monopolized by a single company or competitors will not conspire to eliminate competition between each other.
In this sense, the intellectual property law seems to show a contradiction with the antitrust law: intellectual property law restricts
The ability of competitors to copy or imitate knowledge products. By controlling the use of intellectual property and related products,
The exclusive right of intellectual property rights makes it possible for the right holder to obtain monopoly prices or restrict competition.
Therefore, the simplest expression about the relationship between the two is: intellectual property rights are monopoly rights, and anti-monopoly law
Oppose monopoly, so the two contradict each other.
But in essence, the two basic concepts in this statement are both wrong.
First, intellectual property does not provide de facto market power, although intellectual property does allow property
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Product differentiation, and sometimes leads to the right holder’s dominance over prices, but this kind of exclusivity is restricted by anti-monopoly law.
The economic monopoly referred to is very different. In practice, a large number of patented products or methods have failed commercially.
Even if it succeeds in business, it often faces competition from other similar products. For example, even if
A glass cup has achieved commercial success due to a certain patented method, but consumers can still choose stainless steel
Other products such as steel teacup or porcelain teacup.
Secondly, asserting that the anti-monopoly law prohibits monopoly is too simplistic conclusion. Although the anti-monopoly law promotes competiti
Struggle as the basic goal, but never claimed that monopoly itself violates the anti-monopoly law. The beginning of the antitrust law
In the end, it is all kinds of anti-competitive behaviors that attempt to monopolize or abuse of monopoly power. If an enterprise obtains and maintains
Its monopoly position, but has not engaged in any anti-competitive behavior, it will not be sanctioned by the anti-monopoly law. Just like the U.S.
Judge Hand pointed out in the famous aluminum company case that "an independent manufacturer, through its own
Advanced technology, foresight and diligence stand out among a group of competitors. In this case, the controversial question
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The problem is that the law does not condemn such results under the factors that it strives to promote, even though this
The result is a monopoly hated by the public. ...A successful competitor, in the competition inspired by the law
After the battle is won, it should not be overthrown. [1]
Since this is the case, how to understand that in the anti-monopoly laws of various countries, intellectual property rights are often used as an exemptio
In terms of regulations, it seems that there is a contradictory relationship between the two? What is the meaning and conditions of intellectual property righ
Form a border with anti-monopoly law? Whether and how the monopoly (or proprietary) of intellectual property rights will
Transform into a monopolistic state or monopolistic behavior regulated by the anti-monopoly law? Is the intellectual property licensing act due to the licen
Is there an exemption from the anti-monopoly law for intellectual property rights or an extra stringent review? This series of questions are all aware
Intellectual property rights and anti-monopoly law are the basic controversies at this stage, and this article is precisely in this theoretical background.
Analyze and demonstrate the above issues from the perspective of intellectual property licensing behavior, or conversely, by clarifying the above issues
To discuss the dispute, to establish the basic principles and direction of the anti-monopoly law and regulation of intellectual property licensing activities.
Realistic background. Intellectual property licensing and its anti-monopoly laws and regulations appear to be divided into important categories in the
want. On the one hand, the innovation, dissemination and application of knowledge play a pivotal role in economic growth. Knowledge
Licensing of property rights is an important means to transform innovative knowledge and technology into productivity as widely as possible. And another
On the one hand, the power of knowledge and technology in the knowledge economy is so great that people begin to suspect that intellectual property
Does the admiration and expansion of rights also lead to negative effects on society, just as the Sherman Act was produced in the United States?
The Chinese public is beginning to feel the threats to economic freedom and political democracy that big consortia and big chaebols may cause.
The emergence of the Microsoft Empire draws attention to the threat of intellectual property rights to competition, innovation, and damage to the public int
Because intellectual property itself cannot completely resolve this balance between personal interests and public welfare through internal checks and balanc
Therefore, the regulation of the anti-monopoly law is the best choice to adjust it from the perspective of public interest.
In this context, for China, the anti-monopoly laws and regulations for intellectual property licensing are particularly important.
significance. From the perspective of economic development, China is still a developing country, and technologically it is also a technologically advanced
To achieve economic and technological advantages as a late-comer, and to improve one’s overall national strength, apart from independent innovation, tech
Progress is the only way. From this point of view, intellectual property licensing often means that Chinese enterprises are
Party, the intellectual property rights holders in developed countries act as licensors to reach an agreement on the authorized use and sale of a certain techn
protocol. Therefore, on the one hand, my country must carry out strong protection of intellectual property rights in order to form a good domestic technolog
Technology licensing environment, attracting foreign advanced technology; on the other hand, it must damage intellectual property rights
Fair competition, effective regulation of the monopoly of the Chinese market, and maintenance of a healthy competition order in the domestic market,
Cultivate a free, fair and open competition environment.
1.1.2 Research significance
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As mentioned earlier, as knowledge and technology become more prominent in the economy, the anti-monopoly on intellectual property rightsThe regulation of laws and regulations is a subject of great significance in theory and practice.
Regarding the relationship between intellectual property rights and anti-monopoly law, there is now a general consensus that the two promote each ot
Value goals such as efficiency, innovation, etc., rather than the earlier belief that the two are in an opposing relationship. However, this principled
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The consensus of the People’s Republic of China cannot solve the specific anti-monopoly laws and regulations regarding the use of actions involving intell
This kind of standard, how to judge the problem. Especially with the continuous development of anti-monopoly law and intellectual property rights,
How to realize the promotion of innovation and competition between the two is a more important theoretical topic. This article attempts to
Make a principled program and a more operational research paradigm.
my country has just promulgated the "Anti-Monopoly Law". Under this legislative background, we have studied the anti-monopoly law
Monopoly laws and regulations, its ultimate foothold, of course, is the medium of anti-monopoly laws and regulations on specific intellectual property licen
National legislation. Regarding the anti-monopoly laws and regulations for intellectual property licensing, there are both the application of the general prin
There are regularities caused by the nature of intellectual property rights. At the same time, most of my country’s current intellectual property licensing
It is now in the form of technology introduction, which involves consideration of national interests and economic health and safety. Therefore, this article i
In addition to the programmatic theory of intellectual property anti-monopoly laws and regulations, each type of specific intellectual property licensing beh
Have conducted an analysis based on China’s national conditions and put forward legislative recommendations, basically completing a complete intellectua
The legislative plan for the licensing of anti-monopoly laws and regulations.
1.2 Current research status at home and abroad
1.2.1 Status quo of foreign research
The relationship between intellectual property and anti-monopoly law is a focus of theoretical research on anti-monopoly law in Western countries
Content, there are many related cases. Since the creation of the Sherman Act in 1890, the anti-monopoly of intellectual property licensing
The legal system has gone through more than 100 years of history as mentioned above. The following is a breakdown of theoretical research and judicial pr
Of.
1.2.1.1 Theoretical research
At present, the research on intellectual property anti-monopoly laws and regulations in foreign academic circles mainly focuses on the following aspe
First, regarding the relationship between intellectual property rights and anti-monopoly laws, scholars’ more common views are:
Rights and the anti-monopoly law share the value goals of innovation and competition. In the long run, the two are consistent and complementary.
Tie. At the same time, it was also pointed out that in specific behaviors, there may indeed be problems with judgment standards and positions. Such as Tho
O. Barnett, "The Synergy of Intellectual Property and Antitrust Law", [2] Daniel J. Gifford in the "Law
Laws and Technology: Borders and Mutual Relations" and other articles suggest that both intellectual property and antitrust laws promote competition,
Innovation, and competition and innovation are the driving force of economic growth. [3] The famous intellectual property expert Mark A. Lemley in
In 2007, the “New Balance of Intellectual Property and Anti-Monopoly Law” proposed that “the stronger the intellectual property, the stronger the
"Anti-monopoly regulations" view. ①[4]
① The original text is Whatever the current tilt and likely direction of the pendulum, our goal needs to be aworld in which strong IP rights are coupled with strong rather than weak antitrust enforcement,and weak IP rights are coupled with weak rather than strong antitrust enforcement.
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Second, criticism of the assumption of market power caused by the original intellectual property rights. American Scholars on American Justice
The agency has long criticized the presumption of patents as market power. ① Such as Brett Aaron
Mangrum "Patent Abuse-A Questionable Tying in Licensing" [5] Thomas P. Walsh, "World
Relevant Markets: The Impact of the Assumption of Market Power in the Abandoned Patent Tying Act, [6] Ariel Katz, “Knowing
Intellectual Property, Anti-monopoly Law and Market Power" [7] etc.
Third, put forward various theoretical methods and tools for the regulation of intellectual property rights. For example, Posner’s
The article “Anti-Monopoly Regulations on Trade Fees and Intellectual Property Licensing” proposes to conduct a review from the perspective of transacti
Anti-monopoly laws and regulations on intellectual property rights. In the article, Posner pointed out that the anti-monopoly law now
The restrictions on the line are too heavy, resulting in a loss of efficiency. From the perspective of transaction costs, many licensing restrictions can be
Save transaction costs, such as tying behavior, thereby bringing efficiency. [8] It is worth noting that the majority advocates efficiency
As the main measure of the trend, in 2003 Daniel A. Farber and Brett H. McDonnell
The two professors in the title why (and how) fairness is important in the field of antitrust law and intellectual property
In the article of importance, the significance of fairness to the anti-monopoly regulation of intellectual property rights is put forward. [9]
Fourth, cost-effectiveness analysis. With the Chicago School Party
The influence of the anti-monopoly law has gradually increased, and the use of economic theories in the anti-monopoly legal system of intellectual propert
Theories and practices of analysis are also constantly appearing, generally starting from the social costs and benefits of behavior, through data,
Model analysis tools to obtain the degree of anti-monopoly regulations governing restrictive behaviors in a certain intellectual property license.
The most representative theory is the ratio theory proposed by Professor Louis Kaplow of Harvard University in 1984.
The ratio theory first established a basic premise: intellectual property rights, especially patent rights, have been valid for
Achieve the best ratio of cost and benefit. For example, the validity period of a patent is 17 years. During this period, because
The cost to the society of granting the patentee exclusive rights and the efficiency of protecting the patent have reached the best ratio
example. Under this premise, the basic meaning of the ratio theory is to impose a certain restrictive behavior on the society.
Compare the costs with the corresponding benefits. The formula of the ratio theory is: patent return/monopoly loss. Among them
Profit return refers to the increased return of a certain restrictive behavior, and monopoly loss refers to the social loss caused by the behavior.
lose. In general, the higher the ratio, the greater the likelihood that the behavior will be permitted.
The application of the ratio theory specifically includes two steps: (1) Judging whether a certain restrictive behavior is allowed to increase
Compared with the social cost of extending the term of intellectual property rights in order to obtain the same benefits, the social cost is not
Yes, if the answer is yes, then the restrictive behavior is not allowed. Because if we think that knowledge
The time limit setting of the property right has achieved the best effect, and the extension of the time limit of the intellectual property right will definitely n
What's more, the cost of the restrictive behavior on society exceeds the cost of extending intellectual property rights. (2) If
The answer is no, then the second step is to determine whether the cost of allowing this restrictive behavior to society is
Less than the cost saved to society by shortening intellectual property rights. [10]
①Finally, the U.S. Supreme Court completely overturned it in the 2006 Illinois Tool Works Inc. v. Independent Ink case.
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In addition to the ratio theory, the economic analysis theory of intellectual property
Baxter in the "Yale Law Review" entitled "Legal Restrictions on Patent Monopoly Utilization: An Economic Analysis"
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Article, which also uses the principles of economics to analyze the legal restrictions on patent licensing, and its general conclusionAs long as the utility of a patent license is greater than the loss to society caused by its restrictive clauses, the license should
It should be allowed. In the article, Baxter mainly used models to limit licensing restrictions such as tie-in sales and geographic restrictions.
The presentation put forward a more relaxed anti-monopoly law position and viewpoint. [11]
1.2.1.2 Theoretical review in judicial practice
The United States and the European Union are the two reference systems studied in this article, and these two regions have been
Also developed their own characteristics. The following summarizes the intellectual property licensing countermeasures from the perspective of judicial pr
The theory of monopoly law.
First, the inherent theory. The inherent theory is the United States Supreme Court in the early 20th century proposed and adapted
Theories used. Its central meaning is a syllogism logical reasoning: "Major premise: the patentee has the refusal to license
And the right to curb patented inventions; minor premise: a license with any restrictions is more limited than not licensed at all.
The degree of control is weak; conclusion: the patentee has the right to impose any substantive contractual restrictions on the licensee. " [12]
The most famous case of applying this theory is the United States v. General Electric Co. case.
In the case, the court upheld the restrictive clause that the patentee fixed the price.
The inherent theory is essentially the position of priority of intellectual property rights, and its theoretical basis is: the intellectual property law grants
The legitimacy and legitimacy of an exclusive right granted is beyond doubt, and the exclusive right is embodied as a right
People can exercise the right in any way they want, including permitting others to exercise the right under any conditions
profit. The anti-monopoly law cannot challenge or restrict the inherent rights of intellectual property rights. Therefore, unless a patent
Is obtained through fraud, otherwise, compared with non-licensing, imposing any conditions of external license is always beneficial to the competition.
Contentious. Because if it is not licensed, no one can compete with the patentee. ①
Some scholars commented that the inherent theory is actually an evasion of the complicated relationship between intellectual property rights and anti
Under the guidance of this theory, the policy of exempting intellectual property rights from the anti-monopoly law is implemented. Only see intellectual pr
The stimulating effect of the law of power on the society, regardless of the anti-competitive effects that may be produced on the society. [10]
Second, the right scope theory. The inherentity theory avoids the contradiction between intellectual property rights and anti-monopoly law,
Gradually annihilated after the 1920s, it was replaced by the scope of the theory.
patent). In the aforementioned Motion Picture Patents Co. v. Universal Film Mfg Co.
In the case, the U.S. Supreme Court recognized that the intellectual property rights resulting from the application of the inherent theory are exempt from th
The results are no longer appropriate, and the anti-monopoly law must deal with intellectual property rights that impede free trade and fair competition.
To regulate the behavior. Therefore, in this case, the court stated: "The scope of the patent right should be limited to the issue
① The meaning of competition here only refers to the use of the same product or service provided by a certain intellectual property, not a market for alternative products or services in competition lawConcept of competition. This may be the fundamental reason for the early opposition between intellectual property rights and antitrust laws. Because if you rigidly treat competition asIn this narrow sense, of course, intellectual property provides a monopoly prohibited by the anti-monopoly law so that the two are opposed to each other. But in practice, a kind of intellectual propertyIt is very rare for a product or service to have no substitute product or service.
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Clearly create claims related to rights. " ① [13] This theory are followed in the subsequent series of cases such as Ethyl
In the Gasoline Corp. v. United States case, the court stated: "The scope of the right is limited to the invention
Creation is bounded by the description and claims of the patent. " [14] In this type of judicial practice, until the 1970s,
Using this approach, the U.S. Supreme Court held that the following three types of contractual restrictions expand patent exclusivity and therefore should
Reprimanded: (1) The licensee is required to pay royalties for its use after the expiration of the patent protection period;
(2) Require the licensee to pay royalties for things that are not within the scope of the patent claims; (3) Tying. [12]
To some extent, the right scope theory is a formalized (formulated) version of the inherentization theory.
According to the theory of inherentization, almost any restrictive practice is exempted from the anti-monopoly law.
The actual need of intellectual property anti-monopoly laws and regulations, the court recognized that the anti-monopoly laws and regulations on intellectu
6
System, but is unwilling or unable to conduct further analysis. Therefore, with the help of a simple analysis of the scope of intellectual propertyAccording to analysis, it is a better alternative to hold the anti-monopoly law accountable for actions that are clearly beyond the scope of rights.
The theory of the scope of rights has defects in at least the following two aspects: First, it is necessary to properly determine whether the scope of inte
A controversial issue in theory and practice. Regardless of whether intellectual property is regarded as a right or a single
It is quite difficult to determine the intellectual property rights of a certain intellectual product alone. In the past, intellectual property
As a bundle of rights, with the continuous development of science and technology, the connotation and extension of its rights are constantly expanding.
Therefore, most countries’ legislation on the content of intellectual property rights is enumerated rather than exhaustive;
From the latter perspective, to determine the scope of an independent intellectual property right, in the patent right, the right
Request a letter as proof, ②But in trademarks and copyrights, the scope of rights is relatively vague. For example, many people easily use
Using inventions or works is mistaken for using intellectual property rights. In fact, the two are not the same thing. Second, the scope of rights
The theory does not carry out further examination of restrictive behaviors in competition law. This is probably the most deadly theory
Defects. To implement anti-monopoly regulations on any behavior, of course, the theoretical analysis of the anti-monopoly law itself should be taken as
according to. The scope of rights theory is based on the basic theory of intellectual property law to measure the legitimacy of anti-monopoly laws and regu
Therefore, this analysis is only a formalized version of the inherent theory, and there is no more competition law.
Reasonable analysis. For example, the theory of the scope of rights seeks the clarity of anti-monopoly laws and regulations.
Licensing activities that clearly violate the scope of intellectual property rights are of course defined as violations of the anti-monopoly law, such as in pate
After the expiration of the period, continue to collect license fees or tie-in sales. However, in a blanket license, know-how is included in
The collection of the license fee within, even after the expiration of the patent, is still reasonable. And there are quite a lot of tying
The occasions will be considered to improve efficiency and improve consumer welfare. Therefore, only in terms of form because of its super
The anti-monopoly law that is presumed to be violated outside the scope of intellectual property rights is still governed by anti-monopoly laws and regulati
The simplified approach lacks deeper rationality.
Third, the theory of distinction between the existence of rights and the exercise of rights. In the European Union, anti-monopoly on intellectual prope
Laws and regulations have their particularities. Since the EU does not have the same substantive intellectual property treaty, the knowledge of each country
① The original text is: scope of every patent is limited to the invention described in the claims containedin it.② Whether this method of judgment itself is reasonable or not is not considered here.
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Property rights laws are independent of each other and independent of the European Union, and competition policy pursues the goals of fair competition an
It focuses on the entire European Union. Therefore, in order to solve the unification of national authorization of intellectual property and competition policy
Shield, Europe has developed the principles of existence and use of rights in a series of cases.
s.
However, the theory of the existence and exercise of rights has the following flaws: intellectual property rights may be emptied. As some
Scholars pointed out that if intellectual property rights do not mean that the protected products or services will be
With the implementation of exclusive use and development, where is the exclusivity of intellectual property rights? Is it intellectual property
Is right a right without exclusive use? [15]
In recent years, the academic circles generally believe that the EU is stricter than the United States in terms of intellectual property competition laws
The existence of rights and the application of the exercise theory should be an important reason.
Scholar Aashit Shah once humorously expressed the EU’s long-term attitude towards intellectual property as
"Mother-like" treatment. In order to cater to the independence of the
The current goal of the EU to unify the big market is to widely adopt intellectual property rights deposits in the anti-monopoly regulations of intellectual pr
In and exercise the theory of distinction. Although Europe’s original hostility towards intellectual property rights has improved, the EU
The committees and courts still have a prejudice against the inherent monopoly of intellectual property rights, and this has led to competition policy
preference. [16]
7
As early as 1966, Establisses Consten SA and Grundig-verkaufs GmbHv. In the Commission case, the court pointed out that the existence or acquisition of intellectual property rights is not subject to the EC treaty.
But its exercise is within the jurisdiction of the European Community Treaty. [17]
In addition to the above-mentioned views and practices regarding the basic position of intellectual property anti-monopoly laws and regulations, forei
The research results are also embodied in the analysis of anti-monopoly laws and regulations on specific intellectual property licensing activities. Such as a
Analysis of the application of the law in the new economy industry, as well as the refusal of intellectual property rights, tying, granting back, and using
There are quite a wealth of research results and cases in areas of use, exclusive licenses, and geographic restrictions.
1.2.2 Current status of domestic research
Since my country’s "Anti-Monopoly Law" has just come into effect, the research on intellectual property anti-monopoly laws and regulations
Mainly stay at the theoretical level, with few practical cases as support.
In terms of academic papers, it should be said that China began to pay attention to anti-monopoly laws and regulations on intellectual property rights a
Issues, from the China Knowledge Network using intellectual property rights and antitrust
2000 articles, among which the more representative ones are: Professor Wang Xiaoye’s publication in Chinese social sciences and other journals
"Legal Issues Regarding Abuse of Intellectual Property Rights to Restrict Competition" (2007), "Anti-Monopoly Regulations on Abuse of Intellectual Prop
(2006), "Restriction of Competition in Intellectual Property Rights" (2006), "Intellectual Property Rights in European Community Competition Law" (2006
"Comment: Owning Intellectual Property Rights Does Not Mean Abusing Market Advantage" (2004), etc.; Professor Wu Handong "On Technology
Legal Rules and Environment of the Technical Competition Market" (2005), "Japan’s Anti-Monopoly Law Control on Abuse of Intellectual Property
"And Its Reference Significance" (2002), Zheng Youde, Hu Zhangyi, "Research on the Anti-monopoly Issues of EU Intellectual Property Abuse"
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(2006), Prof. Xu Guangyao "Analysis of the Competition Law of Copyright Refusing to License" (2007), Feng Xiaoqing, "Knowledge
An Analysis of the Relationship between Intellectual Property Rights, Competition and Anti-monopoly (2005), Lin Lixin, Li Yong, Intellectual Property La
Conflict and Coordination of Laws" (2002), etc.
In terms of works, there is Wang Xianlin's "Intellectual Property and Anti-monopoly Law-Anti-monopoly Issues on Abuse of Intellectual Property Rig
Research” (Law Press, 2001 edition), Guo Dezhong “Anti-Monopoly Regulations on Patent Licensing” (Intellectual Property
Publishing House, 2007 edition), Xu Hongju, "Research on Legal Issues of Patent Licensing" (Law Publishing House, 2007 edition),
Zhang Ping and Ma Xiao "Standardization and Intellectual Property Strategy" (Intellectual Property Publishing House, 2002), Liu Xiaodong "Knowledge
Property Rights and Software Industry Market Structure" (Zhejiang University Press, 2006), etc. ①
To sum up, my country's current research on this subject can be summarized into the following aspects:
First, with regard to the relationship between intellectual property rights and anti-monopoly law, Chinese scholars
The point is that intellectual property and anti-monopoly law are mutually reinforcing, and their purpose is to stimulate people’s competitive activities.
To improve the efficiency of resource allocation, but the two methods of promoting competition are different: the anti-monopoly law
Competition to promote competition, while intellectual property rights protect the exclusive rights of right holders and restrict competition with certain rest
Ways to stimulate people to compete in the field of knowledge economy. [18]
Second, harmonize intellectual property and antitrust laws in a way of balancing interests. In the specific conflict between the two,
Chinese scholars mostly argue from the perspective of interest balance. For example, Professor Feng Xiaoqing pointed out: "The private interests of intelle
There is a balanced relationship between anti-monopoly interests, which is reflected in legislation as the intellectual property law and anti-monopoly law
The interaction and coordination of the regulation of intellectual property monopoly behavior. [19] Some scholars believe that “in
In the process of people’s exercise of rights, using the method of interest measurement, we can not only judge whether there is a right
'Abuse', but to decide which party's interests are biased, so as to seek legal remedies for that party's interests. " [20]
Third, explain and analyze related systems in foreign countries, mainly the United States, Japan, and Europe. Chinese scholars
There are many introductions to relevant legislation and jurisprudence in the United States and Europe, such as the 1995 Antitrust Guidelines for Intellectu
South", the European Union’s 1996 and 2004 "Technology Transfer Agreement Batch Exemption Regulations", etc. The jurisprudence is like the United St
8
The Microsoft monopoly case, the Magill case of the European Union, etc., and related legislation in Taiwan and Japan are also involved.However, the biggest flaw in our country’s theoretical research on this subject lies in its emphasis on foreign related systems.
The introduction and analysis of the degree and the macro-study of intellectual property anti-monopoly laws and regulations, and the micro-system in this f
The research is seriously insufficient. For example, the author has searched for the use of domain restrictions and geographical restrictions in intellectual pr
And other micro-system research results, the search results on China Knowledge Network are almost zero (only in the foreign trade magazine
There are sporadic introductions). Therefore, the current theoretical research on this subject urgently needs microscopic and practical research.
And not just stay at the macro level. ②
① The above enumeration is limited to research articles and works devoted to intellectual property anti-monopoly laws and regulations. In fact, in recent years, China’s
The research works on intellectual property law are quite rich, and many of them also involve the interweaving fields of the two. I will not list them one by one here. However, theseAcademic research results also played an important role in the writing of this article.② and current relationship of intellectual property and antitrust law, in theory, controversy is not large, both Chinese and Western scholars both agree on the fundamental goal
Consistency.
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1.3 Basic concepts and main research content
1.3.1 Definition of basic concepts
In the writing of this article, we must first define the following groups of concepts:
First, intellectual property and technology. When determining the topic of the thesis, the author used to think about it:
Use intellectual property licensing or technology licensing? From the perspective of empirical analysis, the targets of anti-monopoly regulations are often
Often technology licensing, that is to say, can form market power or anti-competitive actual
The effect is usually only high technical content such as patents, technical secrets and software copyrights, which may have production utility
Intellectual property rights, other traditional copyrights such as novels, songs, movies, etc., constitute a competition hazard in the anti-monopoly law
The probability is very low, and generally will not lead to the regulation of anti-monopoly law. From this perspective, it seems to be defined as technology
Permission is more appropriate. However, as a legal research paper, the anti-monopoly regulations on technology licensing are actually
The above is a series of theoretical and practical problems caused by the protection of technology by intellectual property rights. Technology has been give
Intellectual property is a legal cloak that has the basic characteristics and nature of intellectual property. Many discussions in this article are
The analysis is based on the legal nature and characteristics of intellectual property rights, so in the end, the author adopts the intellectual property
The concept of right licensing, but the research objects are mainly limited to patents, proprietary technologies and software copyright licensing.
Trademark and traditional copyright licensing are less involved.
Second, permission. Generally speaking, intellectual property licensing refers to the transfer of knowledge without transferring ownership.
Property rights in intellectual property rights. Taking patent rights as an example, according to the provisions of TRIPs, the patentee has the right to: "(a)
If the patent protects the product, it has the right to stop the following unauthorized third parties: manufacturing, use,
Promise to sell, sell, or import the patented product for the above-mentioned purposes; (b) if the patent protects the party
Law, it has the right to stop third parties from using the following methods without permission, as well as the following behaviors: use, permission
Connaught sells, sells, or imports for the above-mentioned purposes at least products directly obtained in accordance with the patented method. "
Therefore, intellectual property licensing means that the right holder allows the licensee for one or more of the intellectual property rights
The exercise of a contract behavior generally has geographical and time limits, as well as other terms such as usage fees.
The European Community defined transfer in the 2004 Guidelines on Technology Transfer Agreement as: “Transfer means
Technology must be transferred from one company to another. This kind of transfer usually uses the exercise of a license, that is, a license
The person grants the licensee the right to use its technology to collect royalties. "
1.3.2 Main research content
As an anti-monopoly legal system for intellectual property licensing, the research perspective of this article is based on the theoretical system of anti-
It is the main line of the internal logic of the article. In addition to the introduction in Chapter 1, the main research contents are as follows:
9
Chapter 2: Basic theoretical analysis of intellectual property licensing anti-monopoly laws and regulations. This chapter is the theory of the full text
Base. Section 1 is an overall analysis of technological innovation, law and social development, so as to establish technological innovation
The positive significance of the society and the directing role of the legal system; Section 2 is based on Section 1, further analysis
Analyze the efficiency analysis paradigm as the anti-monopoly law on the regulation of intellectual property rights: the difference between innovation effic
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10
As the efficiency dimension and justice dimension of the anti-monopoly law, the two most important indicators are among them. Section 3 is about the New
Specific analysis of the intellectual property anti-monopoly laws and regulations in the economic industry, and pointed out the basic principles of the anti-m
Theories and theories are still applicable in the new economy industry, but due to the importance of intellectual property rights in the new economy,
The anti-monopoly regulations in this field have their particularities.
Chapter 3: The status quo and macro analysis of China's intellectual property licensing anti-monopoly laws and regulations. This chapter focuses on
The proper orientation of China's intellectual property licensing anti-monopoly laws and regulations. Section 1 introduces and analyzes China’s economic b
The legal background and the status quo of intellectual property licensing, Section 2 proposes that in view of the background and status quo of China, my c
The basic values and objectives of the anti-monopoly legal system for intellectual property licensing are reflected, especially based on relevant data,
From the perspective of evidence, competition is proposed as the basic value in this field, and on this basis, it constitutes three progressive goals.
Standard embodiment. Section 3 puts forward the legislation of the normative legal documents of my country's intellectual property licensing anti-monopo
Conceptions, respectively, from the legislative model, the principle of identification of violations, etc. are proposed.
Chapter 4: Anti-monopoly regulations on abuse of dominant position in intellectual property licensing. Intellectual Property Licensing
The abuse of dominance in China generally includes tying, refusal of license, price discrimination clause, and validity challenge clause.
For each type of abuse of dominant position, according to the definition of connotation, relevant EU legislation and practice analysis, countermeasures
The monopoly law analyzes three parts to discuss, and finally puts forward legislative suggestions suitable for China's national conditions.
Chapter 5: The acts of restricting competition agreements in intellectual property licensing generally include geographic restrictions and exclusive lic
There are five types of use field restrictions, price restrictions, output restrictions, and grant-back clauses. For each type of restrictive competition clauses,
According to the definition of connotation, the analysis of relevant EU legislation and practice, and the analysis of anti-monopoly law, the discussion will b
And finally put forward legislative suggestions suitable for China's national conditions.
Chapter 6: Intellectual Property Licensing and Anti-Monopoly Regulations in Technology Association and Technology Standardization. Technology p
Technical standardization is two particularly obvious ways of using technology in the new economy industry, which may cause abuse of dominance.
Status behavior may also constitute an agreement to restrict competition, so this article lists it as a separate chapter. In this chapter,
It is divided into two parts: technology pooling and technology standardization: the licensing of intellectual property rights in technology pooling
The definition, anti-monopoly law analysis and final legislative recommendations were carried out; technical standardization was based on the standard
Anti-competitive behavior in the formulation process and the anti-monopoly law for foreign licensing after the formation of anti-monopoly regulations and
The two stages of regulation are discussed.
Conclusion: Anti-monopoly laws and regulations for intellectual property licensing should take innovation, competition and consumer welfare as a co
Quantity standard. In China’s current intellectual property licensing environment, maintaining market openness and fair competition should be taken as
The primary goal is to implement a slightly tighter degree of regulation in specific anti-monopoly regulations than in Europe and the United States.
1.4 Research methods and innovations
1.4.1 Research methods
The research methods used in this book are mainly cross-studies, comparative studies and case studies.
Interdisciplinary research: Economic analysis of law is an interdisciplinary subject that developed rapidly in the West after World War II. In recent ye
Page 23
11
Scholars have also begun to use this method to conduct legal theoretical research. Anti-monopoly law should be the most connected with economics
For the close departmental law, whether it is the Harvard School’s industrial organization theory or the Chicago School’s pursuit of efficiency
All these requirements have an important influence on the development of anti-monopoly law. In the research of this article, mainly through economics
Basic theory to explain the definition of efficiency in the anti-monopoly law, as well as effective competition theory and dynamic competition theory
Wait to analyze the relationship between technological innovation, competition and monopoly.
Comparative research: When using economics and legal theories to analyze relevant anti-monopoly laws and regulations, the United States
Take the EU and Japan as examples, make corresponding comparisons, and explore the main origins in light of China’s reality
How does the anti-monopoly law rules of western developed market economy countries apply to the specific reality of China?
Case study: The provisions of the anti-monopoly law are often too simple, and the specific interpretation and application mostly appear in the judicial
Among the precedents, especially in case law countries like the United States, judicial precedents are an important resource for research. Aiming at
Related discussions in China are also analyzed in conjunction with relevant cases. Therefore, the case analysis method is the subject of this article
Important research methods.
1.4.2 Innovation
In the writing process of this article, we first try to make the materials novel, which can reflect the latest theoretical research in the research field.
Research results and practice. Since the anti-monopoly law originated in Western countries, its related legislation, judicial and theoretical research
It is an important study and research template. Therefore, the collection of data focuses on the United States and Europe.
First-hand materials, this article tries to reflect the latest information of Western countries in the collection and collation of relevant foreign materials.
Practice and research dynamics. Among the references in this article, the latest relevant normative document is the United States in March 2007.
"Anti-Monopoly Law Enforcement and Intellectual Property: Promoting Innovation and Competition" promulgated by the Ministry of Justice and the Fede
The latest date of the paper is in the spring of 2008. Dr. Kyle Friedman is entitled "A Rose By Any Other Name:
Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases" Academic Theory
Article , the latest case in 2006, the U.S. Supreme Court Illinois Tool Works Inc. v. Independent Ink,
The Inc. case basically achieved the collection and analysis of the latest foreign first-hand data.
Of course, as an academic research, the novelty of materials is only the first step, and the more important research purpose is to research
Innovation in the field of research. In this regard, the innovation of this article is mainly to counteract intellectual property licensing.
The monopoly law system conducts systematic and comprehensive analysis and research, and puts forward more operational legislative suggestions. Tool
In general, there are the following aspects:
(1) The basic content of the analysis paradigm of the anti-monopoly law in intellectual property licensing:
Competition is harmful, but significant innovation efficiency can be achieved to improve the overall welfare of society, and these behaviors
Is indispensable to achieve these efficiencies. Among the various possible choices, the damage to consumer welfare is
At least, under these premises, the licensing behavior should be allowed; if the effect of a certain behavior on innovation efficiency is
If it is neutral or uncertain, it will be allowed based on its impact on consumer welfare; in any case, the line
In order not to lead to permanent and comprehensive elimination of competition.
(2) This article analyzes from an empirical point of view and proposes that the anti-monopoly laws and regulations for intellectual property licensing in
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Competition should be regarded as the basic value orientation, and the importance of competition to China’s current intellectual property licensing situation
Based on this, the goal system of anti-monopoly laws and regulations in my country's intellectual property licensing system has been established. From the
12
From the perspective of the history of the exhibition, compared with the civil and criminal law departments, intellectual property law and anti-monopoly la
The most powerful departmental law of “product” has not yet formed a widely recognized legal psychology and law among the Chinese public.
Legal Awareness. The reason for this phenomenon is that in addition to basic reasons such as traditional legal culture, the two
It is an important factor in the process of law transplantation to adapt to China’s national conditions. Therefore, it is important to study the
The regulation of intellectual property licensing activities must be based on the basic principles of the departmental law, and be targeted and divided.
Analyze the problem. The so-called "ism can be used, problems must be native, and theories must be self-reliant."
(3) For all kinds of anti-competitive behaviors in intellectual property licensing, more detailed and operational
Legislative recommendations, especially regarding the use of domain restrictions, price restrictions, output restrictions, exclusive licenses and geographic r
There are no relevant research results in my country for the analysis of micro-systems such as the system.
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Chapter 2 General Theory of Intellectual Property Licensing Anti-monopoly Regulations
2.1 Technological innovation and legal system
In the most basic sense, technology exists in the use of labor to obtain a certain product, service, or
In the process of his results, the continuous advancement of technology is shown as the emergence of new products or with less labor (successful
Originally) to produce a historical trajectory of a certain old product. The law, in general, refers to being adopted by government agencies
, A set of rules that apply to all residents. [twenty one]
13
Since the industrial revolution, science and technology have always occupied a vital position in the production and life of human society.The increasing wealth and a more comfortable and convenient life brought to us by technological progress have promoted the development of society.
Development, and are constantly meeting people’s various needs, enabling us to fully enjoy the enthusiasm of science and technology
one side. The logical trajectory of technological progress-economic growth-social development has become a
Regional consensus, therefore, as the most important social regulator, one of the basic tasks faced by the law is to
How to stimulate technological progress through the legal system to promote social development. In this sense, whether it is
The most typical intellectual property law as a technological incentive mechanism still seems to deviate slightly from technological development.
Monopoly law actually has a common logic-promote technological progress and innovation, thereby increasing social wealth,
Achieve economic growth.
2.1.1 The general relationship between technological innovation and legal system
2.1.1.1 Technological innovation and social development
According to the OECD’s definition, technological innovation refers to the transformation of an idea into a new
The process of transforming new or improved products; or transforming an idea into a new or improved process used in industry
art. Drucker extended the concept of “innovation” and proposed “social innovation”, thinking that innovation is the endowment of capital.
Source with new behaviors of creating wealth. The EU’s 1995 Green Paper on Innovation considers innovation to be “in
Successfully produce, absorb and apply new things in the economic and social fields. It provides new ways to solve problems,
And it makes it possible to meet the needs of individuals and society. " [22] technological innovation is not equivalent to scientific and technological inventio
It means a more social function: "I can identify opportunities for profitable change, and keep
Pursue such opportunities until they are used in practice; in particular, identify economically viable developments.
And do everything possible to introduce these inventions to the market, or, through some other means, to ensure this
These inventions are effectively applied. " [23]
The significance of technological innovation to social and economic development is embodied in economists’ inquiry into economic growth theory
In the process. The essence of economic growth is the improvement of production efficiency, and the reasons and performance that lead to the improvemen
Forms have different manifestations and emphasis in different periods of social development. Classical economic theories have made a difference in this re
To summarize the same, the theory that pays the most attention to technological innovation is Schumpeter’s growth method
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(Schumpeterian): Refers to the economic growth caused by the accumulation and increase of human knowledge. Knowledge package
Including technical knowledge and institutional knowledge, the former means that a new type of information can enable humans to produce
Set products, or produce better and newer products. Institutional knowledge includes the emergence of a new form of organization
And changes to production methods. Schumpeter’s growth method is actually a way of relying on technology and organizational innovation.
The way in which high resource utilization efficiency promotes economic growth. ① Among them, technological innovation is a new combination of produc
In order to improve the potential output capacity of the society. The concrete manifestations are in three aspects: creating new goods and services;
In the case of established labor and capital, increase the output of original goods and services; there is a kind of expansion
The function of dispersion effect, this kind of diffusion effect can promote the rapid development of economy.
The role of technological innovation in promoting social and economic growth is exemplified by the United States in practice: Joseph F.
Brodley pointed out in the 1980s that through research, from the 1920s to the 1960s, the United States National Congress
At least half of the output value should be attributed purely to technological progress and innovation. [24] Since the US economic recovery in March 1991
Since the Soviet Union, it continued to expand for 118 months by the end of 2000.
The period of expansion was achieved under the conditions of low inflation and low unemployment. The economics community will this phenomenon
It is called the New Economy of the United States and has been extensively discussed. One of the consensus is that information technology is a major techn
The driving force of technological innovation on economic development. In a research report, the Organization for Economic Cooperation and Developme
The reason why technology is a powerful driving force for productivity is that it can play a role in three aspects: First, the information and communication
14
The role of industry itself in the development of productive forces. The second is that information technology is used as capital investment in other industri
The role of the door. The third is its spillover effect. This effect can surpass investors and assets in the industry
Owners, so that all other market participants also benefit. [25]
Now, almost all economists agree that technological progress is the engine of economic growth. Many economists
Efforts are made to find the decisive factors of economic growth from the perspective of technological progress.
After becoming a factor analysis of technological progress.
2.1.1.2 The significance and value orientation of law to technological innovation
A concept closely related to technological progress and innovation is institutional innovation. As mentioned earlier, technological innovation does no
It is equal to scientific invention, and contains a wide range of socialization and marketization significance. Therefore, the realization of technological inno
Based on a series of comprehensive factors, a system that matches the law of technological development is an important foundation. like
In the World Economic Forum’s ranking of international competitiveness,
① Other growth methods are: 1. Smithian growth method (Smithian): refers to the division of labor and the adoption of new technologies in society can increase the allocation of resourcesEfficiency and increase labor productivity, leading to economic growth and the improvement of residents’ living standards. This approach mainly emphasizes that the division of labor contributes to productivity improvement.High impact is the most important way of economic growth in the industrial revolution era. 2. Fordian growth mode (Fordian): refers to the production and economic activitiesA generalized scale effect. Large-scale production and institutional construction can reduce production and social costs, which include higher fixed capital investment in factories, etc.The reduction of direct production costs also includes the construction of infrastructure, the investment and improvement of the education system, and the establishment of the property rights system.This will increase production efficiency. 3. Solovian growth method (Solovian): It is based on the US economist Robert Solovian'sThe long-term analysis believes that capital deepening leads to economic growth. Because under the conditions of a given industrial technology level, the growth of output depends on capital and labor.If the rate of formation of net capital exceeds the rate of population growth, per capita output will increase and the economy will grow. cited fromMokyr, Joel Twenty-five Centuries of Technological Change: AnHistorical Survey.London: HarwoodAcademic Publishers, 1990, pp. 2~4., quoted from Gao Shiji, Technology and Organizational Innovation and New Economy, World Politics and Economy, 2001No. 1, p. 44.
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The environment, public system, and technology are used to evaluate the ability of sustainable economic growth, while public system mainly refers to one
Whether the legal systems and policies related to technological innovation in each country or region are sound, transparent, and efficient.
Whether the government orientation of the advancement of industrial technology conforms to the law of market development and so on. For the country, to
Comprehensive national strength and competitive strength to promote economic growth, the country’s relevant laws and systems must be used to promote t
Technical innovation is the basic purpose.
The promotion of technological innovation by the public system represented mainly by law depends on whether it conforms to technological innovati
The law of technical development and endows a basic view of justice.
The former refers to the provision of law, a public product, that matches the current technological development. For example, the American economy
Economist David D. Friedman has given an example of how technological developments have made copyright law necessary. 20th Century
In the early days, there was no copyright treaty between the United States and the United Kingdom, and American publishers could pirate books by British
Despite the lack of legal protection, British writers still routinely obtain royalties from the sale of books in the United States. Because
Under the technical conditions at the time, piracy was a very slow and expensive job, so legitimate publishers
Obtained all the proceeds from early sales. [26] And when our replication technology has developed into today’s digital age,
The time difference between piracy and genuine copy and the cost of copying are already close to zero, and copyright protection has become a stimulus for
An indispensable system guarantee for art and other works. Another meaning of matching is to provide just the right amount of protection,
Too much is too late. The current doubts about the expansion of intellectual property law reflect this aspect. ①
The public system has a basic view of justice which refers to the purpose of social development. As mentioned earlier,
Technological innovation is for economic growth, so what is the purpose of economic growth? This question has gone beyond
The field of economics involves a broader world of sociology, philosophy, law, etc. We generally call it justice
The problem. The justice issues related to technological innovation can be roughly divided into two levels: the first level is about technology and
The philosophical questioning of technological innovation itself is the "nightmare of technological rationality." ②The second level is for technological innovat
The benefits and distribution problems brought about by a similar society. This article mainly discusses the second-level problem, that is, how to use techno
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The social wealth brought about by technological innovation benefits the most people at the material and spiritual levels, and safeguards the entire society.Freedom and harmony. Specifically, between the creator of technology and the public, between the producer and the consumer, such as
How to share the efficiency brought by technological innovation can not only maintain the necessary incentives for technological innovation, but also enab
The public as individuals enjoy the spiritual freedom brought about by technological progress and the increase in social wealth (instead of being
Technical control) and material abundance.
The legal system directly related to technological innovation is mainly reflected in the intellectual property law, anti-monopoly law in a country.
Judgment and Industrial Policy Law, etc., in view of the research topics of this article, here only the intellectual property law and anti-monopoly law and
① This issue will be discussed in the part of this chapter on the negative effects of the intellectual property system on technological innovation, and will be omitted here.② This level mainly focuses on the rationalism in various disciplines derived from technological progress and increasing wealth since the industrial revolution. hostTo be represented by the Frankfurt School (Frankfurt School), they believe that under the influence of "technical rationality", orthodox economists will"Economic growth" has become an "unshakable and undeniable belief"; behind these appearances is particularly profound, "technical rationality" or "workmanship"."Reasonable" is like a lingering nightmare. It is becoming a kind of "ideology" ruling us. Today, this kind of scene is in real life.It is directly manifested in various social problems: "The destruction of ecology, the threat of war, the rapid change of social order, people’s ideological and conscious disagreementAnn, Zaiyu shows that knowledge growth is not an infinitely inflatable balloon. "American scholar Meadows (Donella H. Meadows) and othersAlso put forward: "the limit of growth."
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Discuss the relationship between technological innovation.
2.1.2 Intellectual property and its incentive mechanism for technology
2.1.2.1 Economic analysis of intellectual property as an incentive mechanism
Whether it is from the empirical analysis of the current system of intellectual property rights, or through the current intellectual property law
The increasingly important analysis of economic theory in the world, the intellectual property system as an incentive mechanism for technology’s function
The definition of capability is beyond doubt. ①
Examine the relevant regulations and judicial practices of the intellectual property system in various countries and international treaties, which stron
The contemporary intellectual property system has verified its legitimacy as a mechanism for stimulating technology and creation.
feature. In 1883, Article 1, paragraph 1, of the Paris Convention for the protection of industrial property clearly stipulated that “protection
"Industrial property rights" as its basic goal. In 1995, the WTO’s Agreement on Trade-Related Intellectual Property Rights
Article 7 expresses the purpose clause of the agreement as: "Promote technological innovation, technology transfer and technology transfer.
To promote the mutual benefit of producers and users of technological knowledge in a way that is conducive to social and economic welfare, and
Promote equality of rights and duties. "From the different expressions of these two important conventions, the intellectual property system has
After more and more attention is paid to the public interests of the society, the individual rights of intellectual property rights in the intellectual property s
The balance of public interest. In the intellectual property legislation of specific countries, the incentive mechanism of intellectual property has become m
Add obvious. For example, the copyright and patent provisions in the U.S. Constitution stipulate: “In order to promote the development of science and pr
Congress has the right to guarantee that authors and inventors enjoy exclusive rights for their respective works and inventions for a limited period of time
We have the right to. " [27] Japanese patent law Chapter 1, Article 1 states:" The purpose of this Act, aims to protect and use
Inventions, thereby rewarding inventions to promote the development of the industry. "The Chinese Patent Law also enshrines explicit provisions: "For
It protects the patent rights of inventions and creations, encourages inventions and creations, facilitates the promotion and application of inventions and cr
To make progress and innovation to meet the needs of socialist modernization, this law is specially formulated. "This kind of general rule in legislation
The general use of the expression model of “for…, to promote…,” in sexual terms actually reflects the impact on the intellectual property system.
Broad consensus as an incentive mechanism.
The legislative consensus on the incentive mechanism comes from the application of economic analysis in the field of law in recent years.
The intellectual property system should be a sector law that uses economic theories to conduct research more adequately. Economists usually
Describe the intellectual property legal system as an institutional compensation for market failure. [3] Simply put, if I
The invention creates a knowledge product or method that is more efficient than before. If there is no intellectual property protection,
The market will copy immediately, and due to the intangible and unlimited reproducibility of knowledge products, others will copy
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The marginal cost of the system is almost zero, compared with the cost of the original inventor or creatorIn comparison, the replicator is at a clear cost advantage, while the inventor is at a disadvantage. Therefore, in this case,
The market cannot automatically compensate the inventors through resource allocation. If things go on like this, no one will be willing to do
Inventions and creations or make them public. In the case of technology as an important endogenous variable of economic development, technology
① Of course, this does not mean that the author denies the definition of the intellectual property system in other dimensions, such as from Locke’s labor property theory, Haig’sEr’s objective volition theory and other angles to demonstrate the legitimacy of intellectual property rights.
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Technical stagnation will seriously hinder economic growth and ultimately affect social development. The intellectual property system is for
To compensate for the public goods produced by such market failures. Through the legal definition of the exclusiveness of intellectual products,
So as to provide a guarantee for the inventors to obtain market benefits. Therefore, some scholars vividly compare the patent system
As a contract between the inventor and the society, the society guarantees its exclusivity for a certain period of time, as
For the price, the inventor will make the results public.
For different industries, the positive effects of intellectual property protection to promote innovation are not the same. For example related to
The statistical results show that the cumulative effect of technology is obvious, the investment in research and development is large, the risk is high, and t
In the industry, the effect of patent protection on promoting innovation is relatively obvious. Such as in the pharmaceutical, biological, chemical and IT in
Industry.
It is worth emphasizing that although the intellectual property system, as an incentive mechanism for technological progress, is
The above is a public product, but the realization of this mechanism is achieved through free competition in the market. simple
In other words, granting the right holder the exclusive right to a certain intellectual product does not mean an inevitable economic return.
The market value of an intellectual property depends on whether the knowledge product has a large market demand and whether
There are considerable alternatives. Therefore, when we interpret the exclusiveness of intellectual property rights as economic
The monopoly power of the intellectual property often means that the object of the intellectual property has a strong market demand and there is no substi
Product, that is, the market value of the intellectual property is extremely high.
2.1.2.2 The social cost of intellectual property rights and its negative effects on innovation
From the perspective of economic attributes, knowledge products are typical public products, and their non-exclusive consumption makes
Intuitively speaking, the more people enjoy the knowledge product, the greater the economic benefits it produces. So if there is no
Intellectual property protection, knowledge products—especially those of high value to human society—are supposed to
Like the rays of the sun, benefit as many people as possible. In economic terms, it has produced a huge
External economic benefits. ①When the creation of knowledge products is still an accidental result or expensive
This description is roughly in line with reality when it is a product of the leisurely sentiments of the ethnic society. But when the industrial revolution mad
This kind of society feels the tremendous productivity brought by science and technology, thus turning invention and creation activities into purposeful, in
The external economic effects brought by intellectual products as public goods must be obtained during the rational economic activities.
Solve it, otherwise it will cause it to withdraw from the market. Paul A. Samuelson pointed out that “no matter what special
The general prescription for dealing with external economic effects is that external economic effects must be made internally by some method.
change. " [28] In other words, the beneficiaries pay the costs, the provider pay off. Is the intellectual property system
A method of internalizing external effects of knowledge products. Generally speaking, the social cost of the intellectual property system includes
The following aspects:
First, the cost paid by society to obtain the use of intellectual property rights. For example, there are ten producers who want to buy
① The external economic effect is the effect of an economic man’s behavior on the welfare of another, and this effect is not derived from currency or market transactions.Reflect it. For example, air pollution caused by a cement plant is borne by neighbors around it, and the cement plant does not pay the cost. This is called external damage.This is a negative effect, while one person plays music and multiple people listen for free, which is an external positive effect. See Paul A. Samuelson, William D. Nordhaus, "TheEconomics", China Development Press, 1992 edition, p. 1193.
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Or are licensed to use a certain patent, and each person needs to pay 100,000 yuan for this, what the ten producers have to pay
The total cost is 1 million yuan, and if there is no intellectual property protection, this cost is zero. Second, intellectual property
Transaction costs during the use of If any form of use of intellectual products must be obtained by the right holder
License and pay the fees, then its transaction costs will rise indefinitely, far greater than the use of the knowledge product
The benefits. Therefore, the current intellectual property system has developed fair use, copyright collective management organizations, etc.
Low transaction cost approach. Third, define the administrative system cost and judicial protection cost of intellectual property rights. In line
In terms of the cost of the political system, the patent examination and registration system is the highest and the copyright is the lowest. The cost of judici
It depends on the judicial system and the degree of rule of law in various countries.
As Professor Zhang Wuchang pointed out: “The cost of intellectual property protection and other transaction costs are
There is a great relationship between style and degree. These costs are often ignored by economists. …To support or oppose the issue
We not only need to determine the method of protection and the criteria for how much protection, we also need to understand
These decisions must be based on an in-depth understanding of the transaction costs of knowledge or inventions. " [29] is a
The intellectual property rights of the incentive mechanism must conform to the basic paradigm of cost-benefit analysis, so that it has
The legitimacy of economics. Therefore, an over-protected intellectual property system will cause the society to pay for it.
The cost is greater than the benefits obtained. In this case, institutional adjustments are required, including intellectual property
The regulation mechanism of the right system itself, such as the optimal patent system that has been discussed in the economics circle. ① The legal circle is m
The reasonable use of notes, compulsory license use, etc., are all realized through the internal regulation mechanism of the Intellectual Property Law.
At the same time, the abuse of intellectual property rights as a private right and its public welfare regulation also require external
Regulation-In this article, of course, we mainly discuss the regulation of the anti-monopoly law on the intellectual property system.
At the same time, the negative effect of the intellectual property system on technological innovation is also something we should pay attention to. Int
As an incentive mechanism for inventions and creations, rights play a positive role in technological innovation in most cases.
enhancement. However, because science, technology and knowledge are a continuous process of development, just like Bernard
Said: "No scientist can have a clear conscience exclusive rights to a technology." [30] and
The exclusive rights brought about by the grant of patents make the use of predecessor’s knowledge cost. When this cost is caused by
When too many patents are granted and become huge, it becomes difficult to further develop and innovate existing technologies.
The economics community often refers to this phenomenon as the "patent bush". The patent thicket phenomenon makes companies wanting to make new p
It is very likely to infringe on most patents and bring "tragedy of anticommons" (tragedy of anticommons). pass
The traditional tragedy of commons (tragedy of commons) means that if resources are not protected by property rights,
With no need to pay, resources will be overused. Water resources and forests are typical examples. However, after giving
After the protection of the patent for invention, because of the large number of patents, each patent must be obtained before using it.
① When economists design the patent width system, they often consider it in conjunction with the patent length. It is generally believed that narrow and long patents are optimalTherefore, most countries set the patent protection period to 20 years, and the independent items in the scope of patent requirements are limited to three items. High patentThe degree of patent, that is, the innovative requirements and distinctiveness requirements of the patent, together with the patent length is called the scope of the patent. The system design of the patent height is conducive to prExisting patents are not easily covered by new improvements. The success rate of subsequent innovative patent applications will obviously be affected by the patent height.To give existing patent holders too much monopoly power and hinder innovation. From the perspective of interaction, limited height and unlimited length are regarded as the mostexcellent. See Dijk VTPatent height and competition in product improvements. Journal of IndustrialEconomics, 1996, 44: 151-16.
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People’s permission prevents the resources from being fully used and becomes an obstacle to subsequent inventions and innovations.
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The traditional "tragedy of public goods" is just the opposite, which is called "tragedy of anti-public goods". When multiple companies have mutualIn the case of complementary patents and diversionary patents, the “tragedy of anti-public goods” makes the original patent system encourage inventions
And the legislative purpose of rewarding innovation fell through and inhibited innovation. [31]
In order to make up for the shortcomings of the limitation of the exclusive rights of a single patent, deal with the "patent thicket phenomenon" and av
To ensure the freedom of patent design, more and more companies are implementing patent portfolios and patent alliances, especially the latter,
Such as the well-known 3G platform, DVD Patent Alliance and so on. However, the patent alliance is often through competitors
Or non-competitor agreement, and this behavior is very doubtful in the context of the anti-monopoly law.
Ground. For example, patent alliances can easily lead to monopolistic pricing, output restriction, market allocation, and other restrictive behaviors.
Or, if the patent union refuses to participate in other companies in some cases, it may also be considered to affect the market.
For example, companies excluded from the patent alliance lose the ability to effectively compete in the relevant product market.
These are typical behaviors concerned by the anti-monopoly law. How to reasonably analyze the impact of the patent alliance on the promotion of innovati
The new positive effect and the negative impact on competition are one of the current anti-monopoly laws in the regulation of intellectual property rights.
Very important subject. ①On the other hand, the trend of "copyleft" and open source software emerging in the software field
It is also a reflection on the protection of innovation in the intellectual property system. [32]
2.1.3 Anti-monopoly law and technological innovation
2.1.3.1 Competition and technological innovation
The positive effect of competition on technological innovation, whether it is classical free competition theory or dynamic competition theory
Theory is a definite proposition. A free and open market competition environment can maximize stimulation
Productivity, thereby increasing the overall wealth of society. Because, the realization of a competitive market policy encourages producers to do their bes
Reduce production costs or provide differentiated products so as to maintain its leading position in the competition.
Survive and develop in market competition. Regardless of whether it is to reduce production costs or to produce more differentiated products
Product and technical innovation are indispensable means. In a nutshell, market competition always prompts producers
By adopting more efficient technology, technological innovation and progress are objectively realized. Especially from the last life
From the mid to late period, the knowledge economy industries such as information and biology have continuously embodied technological innovation an
The positive interaction relationship.
The anti-monopoly law always regards competition as one of its basic value goals, and it is precisely through maintaining market competition that t
A basic function, the anti-monopoly law has achieved a positive effect on technological innovation. Take the U.S. antitrust law as an example, in
In 2003 and 2007, the US Department of Justice and the Federal Trade Commission jointly issued two related intellectual property anti-monopoly policie
The documents of the legal system are all under the name of technological innovation: the former is called "Promoting Innovation: Competition and Paten
The appropriate balance of policies”, the latter is called “Anti-monopoly Law Enforcement and Intellectual Property: Promoting Innovation and Competit
① There is a more detailed analysis and demonstration in Chapter 6 of this article , which is omitted here.
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2.1.3.2 Monopoly and technological innovation
Compared with competition, the relationship between monopoly and technological innovation is much more complicated. In the Classical Free Comp
, The basic view of monopoly is: in order to obtain excess profits, monopolists always try to limit output so as to reduce
The price is maintained above the competitive price. This kind of output restriction cannot achieve the maximum efficiency in the allocation of social resou
This has caused the so-called "necessary social loss" in economics. Therefore, monopoly will cause no distribution
efficient. At the same time, due to the lack of pressure in the competitive market, monopolists are not very sensitive to production efficiency.
The motivation for technological innovation is weaker than in a competitive market. Of course, because innovation can reduce costs
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To increase profits, monopolists also have the motivation to adopt technological innovations, but compared to those in a competitively structured market.In China, the pace of technological innovation will be delayed.
Since the classical competition theory mainly focuses on the state of static competition, it ignores the human factors in the process of production deve
Element, that is, the mutual influence of enterprises, describes socio-economic development as a prerequisite for continuous change at a certain technologic
Under the condition of free allocation of resources commanded by price levers to maximize benefits. Just look
In view of the above-mentioned shortcomings of the classical free competition theory, Hayek and Schumpeter proposed their own dynamic competition the
Theory, Schumpeter’s theory of creative destruction provides a new understanding of the relationship between monopoly and technological innovation.
knowledge.
Schumpeter used the process of "creative destruction" to explain the development of capitalism. The competitive characteristics of capitalism
Levy is not determined by competition in which price dominates, but by innovation and technological breakthroughs. "Start and
Maintaining the fundamental driving force of the capitalist engine movement comes from the new consumer goods and new products created by capitalist e
Production methods or transportation methods, new markets, new forms of industrial organization. "Creative destruction is the realization of a new combin
The process of continuously renewing the economic structure from within. "Industrial mutation... Constantly reforming this economic structure from within
Minghua, constantly destroying the old structure, and constantly creating new structures. This process of creative destruction is capital
The essential fact of capitalism. "Creative destruction" has changed the perception that price competition
It is the concept of competition that is the only way for companies to compete. "The first thing to change is the traditional view of competition.
Economists have finally escaped from the stage of seeing only price competition. Once quality competition and sales are allowed
Efforts to enter the sacred realm of theory, the price variable is driven out of its dominant position. ""Creative Destruction"
The process is a competition for cost and quality improvement, not price competition. ""It is very different from textbooks
In the reality of capitalism, what is valuable is not that kind of competition, but new products, new technologies, and new supplies.
Sources, new organizational forms (such as huge-scale control agencies) competition, that is, the cost of ownership or quality
It is not the profit margin and output of existing enterprises that this competition hits, but it
Our foundation and their lives. " [33]
In this innovative competition called "creative destruction" by Schumpeter, companies must not only base their survival on
Focus on invention and creation, and we must unremittingly carry out the revolution of innovation speed; not only for peer companies
The product innovation of the industry, the devastating creation of attacking the other side, but also the old product
Creative destruction. Such a competitive landscape will inevitably lead to the formation of monopolies in capital and technology-intensive industries.
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The market structure of competition and oligopoly, monopolistic enterprises, especially large multinational
The advantages of core technology, basic research, and cooperation platform for global scientific and technological innovation are inevitable in the innovat
In a dominant position. Some scholars believe that only a few large enterprises (3-5) are relatively leading or monopolistic.
The industrial structure that drives the monopolistic competition of countless small companies below, realizes the transformation from economies of scale i
The transformation of the field scale economy can improve the industrial efficiency. Therefore, in the context of the new economy. . . . . . . ,. Monopoly not only has no restraint. . . . . . .Technological progress. . . . . ,. Instead, it has accelerated the realization of industrial technological progress in more intense competition.. . . . . . . . . . . . . . . . . . . . . . (Emphasis on the number of the author
add). [34]
However, scholars still point out that the best economic environment for technological innovation is competitive. ①So , off
The relationship between monopoly and technological innovation is still an open question, and there may not be a final question.
The only certainty is that monopoly can promote technological innovation in a certain sense.
It is to recognize the positive effect of monopoly on technological innovation at the moment, and the anti-monopoly in major countries and regions
The law adjusts the simple opposition law of "competition promotes technological innovation, while monopoly hinders technological progress"
Reasoning, but in-depth use of economic theories to analyze different market structures in specific industries and economic contexts.
The interactive relationship between structure and technological innovation.
In general, both the competition paradigm and the monopoly paradigm have positive aspects to promote technological innovation.
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Therefore, the goal and means of the anti-monopoly law lies in a reasonable analysis of different industries and different economic environments.
What kind of market structure and market behavior is to promote technological innovation, so as to encourage, otherwise, impose sanctions
Or prohibit, rather than simply antagonize competition and monopoly.
2.2 Theoretical analysis of anti-monopoly regulations in intellectual property licensing
On the common path of promoting technological innovation to promote economic growth, the anti-monopoly law and intellectual property law issu
Play their respective roles, but there is indeed a micro-institutional tension between the two. Microsoft has different roles in the world.
Local anti-monopoly law litigation is the most typical practical example. Discussing the anti-monopoly law and regulation model of intellectual property
The formula must of course be carried out in the context of the anti-monopoly law. Therefore, it is first necessary to determine the basic price of the anti-m
Values and goals are discussed in order to establish the basic values and goals of the paradigm, and secondly, anti-monopoly on intellectual property right
The definition of law finally leads to an analytical paradigm with a certain degree of operability.
2.2.1 Interpretation of efficiency in economics
Efficiency refers to the most effective use of social resources to meet human desires and needs. [35] As the most experienced
The economic sense of the legal system and the efficiency in the anti-monopoly law must be based on the concept of efficiency in economics.
From the perspective of different implementation mechanisms, economic efficiency can be divided into resource allocation efficiency and productio
In different historical periods, they have become the economic basis of the efficiency dimension of anti-monopoly law.
foundation.
① Please refer to the discussion on innovation efficiency in this chapter.
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2.2.1.1 Resource allocation efficiency and production efficiency
Resource allocation efficiency and production efficiency are both static expressions of different dimensions of efficiency. Resource allocation
Efficiency refers to the allocation efficiency of scarce resources among various competing uses. In layman's terms, resources should be allocated
For those who can make the most effective use of it, and the means to achieve this goal, we generally think of it as competition. Production efficiency
Rate refers to the production of a certain output at the lowest cost, which means that the production unit is
Under the conditions, production at the most economical cost.
Neoclassical economics assumes that the enterprise is a "black box", it is only under the established investment and technical level
Achieve maximum output and minimize unit cost. Whether it is technology or system, it is a fixed factor.
Therefore, once the allocation of production factors of an enterprise is determined, its production efficiency is also determined (because of the assumption
Technology is a constant production function). Under the circumstance that the production efficiency of enterprises remains unchanged, it is necessary to
The main focus of high efficiency is focused on the efficiency of resource allocation. Due to the scarcity of resources, I
We should devote limited resources to areas that can maximize utility. In Posner’s words,
Through the price exchange mechanism, under the control of the invisible hand of the market, “resources will be transferred to
The price you are willing to pay is measured by the highest value in use. When resources are being put into the most valuable use
At the same time, we can say that they are used efficiently. " [36] efficiency of resource allocation, also known as Pareto
excellent. To achieve Pareto optimality, three marginal conditions must be met: (1) The marginal conditions of the transaction, any
The marginal rate of substitution of two kinds of goods is equal to the owners who consume the two kinds of goods; (2) factors
The marginal condition of substitution, the marginal technology substitution rate of any two input factors for all the use of these two factors
The input products are all equal in terms of production; (3) The marginal conditions of product substitution, any two commodities are consuming
The marginal rate of substitution in fees must be equal to the marginal rate of conversion in production. [37] As described by the above three marginal cond
The market is a perfectly competitive market under a given technology-that is, goods of the same nature will be composed of many relatively competitive
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Small sellers supply or demand for smaller buyers, but none of them expect to pass personalBehaviors have a sensible impact on prices; people can enter the market freely, and
There are no other restrictions on the fluctuations of the grid and the flow of resources; all those who participate in the market process are completely
Understand the relevant factors. ——Under this kind of market mechanism, each manufacturer is based on the marginal revenue equals the marginal cost
According to the equilibrium condition of the principle of profit maximization based on the capital, production is arranged. In the long-term equilibrium f
Both the cost and the market’s long-term equilibrium price have fallen to the lowest level, they are equal to the lowest long-term average cost, and
The market just clears, the long-term equilibrium quantity of the market is equal to the sum of the demand of all consumers in the market, and
As the total supply of all manufacturers in the market, there is neither shortage nor excess product.
[38] In this way, both producer surplus ① and consumer surplus ② are maximized, so that the total social surplus is also maximized.
Dahua. Because the efficiency of resource allocation relies on the competitive market, the pursuit of resource allocation efficiency will inevitably mean
It means the maintenance of competition, and the market pressure brought by competition will make consumers inevitably share the effect of resource allo
① Producer surplus refers to the difference between the total payment actually accepted and the minimum total payment that the manufacturer is willing to accept when providing a certain amount of a certain productForehead. That is the difference between total revenue and total marginal cost.② Consumer surplus refers to the difference between what a consumer is willing to pay for a certain product and what he actually pays.
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The social welfare brought by the increase in the rate. Therefore, the realization of resource allocation efficiency is consistent with consumer welfare.
Since the 1960s, Stigler, a representative of the Chicago School, has begun to pay attention to production efficiency.
problem. He discarded the traditional neoclassical microeconomics view that enterprises are regarded as identical atoms.
The expansion of the scale of the enterprise will bring about the improvement of production efficiency, and the efficiency brought by the economies of sc
On this basis, Baumol et al. further proposed the "competitive market" theory and pointed out that the pressure of potential competition is sufficient.
In order to make the market maintain a competitive equilibrium in the long run, that is, "competition is the normal state." As competition still exists (to
There is less potential competitive pressure), so it is still necessary for companies to maintain competitive pricing (rather than monopolize high prices).
Therefore, the expansion of enterprise scale will not cause the loss of allocation efficiency, and still enable consumers to enjoy production efficiency.
The social welfare brought by the increase in the rate of production, therefore, the production efficiency, allocation efficiency and consumer welfare are st
Is consistent.
From the above analysis, it is not difficult for us to understand that the Chicago School proposes that efficiency is the pursuit of antitrust law.
The only goal is always to mix it with consumer welfare. As Justice Polk declared: "Antitrust
The overriding purpose of the law is to improve consumer welfare by improving the efficiency of allocation.” And the goal of efficiency
Interpreted as the two relatively observable market variables, output and price, to determine whether it is necessary to
To implement anti-monopoly regulations.
But in reality, even without considering the dynamic factor of the increase in production efficiency brought about by innovation, the production
Production efficiency, allocation efficiency and consumer welfare are not completely consistent. Because of the competitiveness of protecting consumer we
The market is premised on the free flow of resources, without considering the barriers to entry and exit from the market in reality.
Sunk costs, so the Chicago School’s equating consumer welfare with efficiency is an idealistic
Competitive markets, in reality, simply emphasizing efficiency often means neglecting consumer welfare.
2.2.1.2 Innovation efficiency
Innovation efficiency refers to the maximum long-term output achieved through optimal investment in productive assets and R&D
It is embodied in the improvement of technology and the improvement of products. Currently, resource allocation efficiency and production efficiency are b
Classical economists describe efficiency from a static perspective, ignoring technological progress and innovation in the process of social production.
Positive impact on efficiency. Since the 1990s, information technology and other knowledge economy industries have pushed the economy forward.
Action has made countries pay more and more attention to the important value of technology, and innovation efficiency is a reflection of this reality.
Innovation efficiency is based on a dynamic competitive market, and its theoretical traceability can be traced back to the last world.
The dynamic competition theory proposed by Schumpeter in the 1940s. Schumpeter referred to competitive forces as "creatively destructive
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Process". Competition will plant the seeds of its own destruction. More efficient producers defeat inefficient competitors,It will increase its dominant market position, move toward market concentration, and restrict further competition. But high profit
The existence of will attract potential competitors to join. New competitors rely on more efficient competitive factors and will
Start a new round of competition. In this way, the abuse of monopoly power by the original superior enterprises is restricted.
Schumpeter’s competition theory focuses on the long-term competitive process, in which technology is not constant, research and
Innovation can promote a huge increase in output, so that the economic process has long-term goals and short-term goals balanced.
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Dynamic efficiency. This kind of competition is dynamically efficient, it highlights products
And the benefit of the improvement of production technology over time.
In 1940, the American economist John Maurice Clark (John Maurice Clark)
Under the influence of Peter's concept of dynamic competition, in the "American Economic Review", "On the concept of effective competition"
This article puts forward the theory of effective competition, focusing on the impact of potential competition and substitution between commodities on the
Impact.
The theory of effective competition is aimed at the fact that pure perfect competition does not exist, and the actual competition is imperfect competiti
Under imperfect conditions, the conditions of short-term equilibrium and long-term equilibrium are not coordinated, and the economic scale and competitio
Contradictions raised. Clark believes that if a kind of competition is economically beneficial,
Realize under market conditions, then this kind of competition is effective.
Unlike neoclassical economics, which analyzes market competition behavior under static conditions, effective competition theory will compete
Seen as a long-term dynamic process: Under competitive pressure, enterprises adopt new technologies and expand production regulations.
A long-term investment strategy to model and reduce costs, increase and improve supply capacity, and ensure a balance between supply and demand in the
After long-term adjustments, the process of effective competition eliminates low-efficiency companies and selects high-efficiency companies. Perfect and h
The hallmark of an effective market competition environment is that enterprises can obtain the best experience through technological progress in the long-t
Economic scale to achieve survival of the fittest.
2.2.2 Efficiency trade-offs and consumer welfare in antitrust law
The efficiency in the anti-monopoly law includes two aspects: one is the impact of the anti-monopoly law on social and economic development, nam
Does the anti-monopoly legal system promote or hinder economic development? If it is promoted, then at how much
To a certain extent, is the current system the best? Through the adjustment of the legal system, is the economic efficiency still
Is it possible to improve? This must rely on the analysis of the realization mechanism of efficiency in economics; the second is the legal system.
The issue of personal efficiency is the cost of the operation of the anti-monopoly law and the benefits it brings. [39] Here mainly from
The first level discusses the efficiency in the anti-monopoly law, and most of them regard efficiency as the main factor of the anti-monopoly law.
It is the main concern of scholars with the only goal.
The inherent logic of efficiency in the legal system lies in guiding or urging people to follow the most effective
Use resources in a way to achieve effective use of social resources. Anti-monopoly law takes efficiency as important or even the only
The essence of the value standard of the anti-monopoly law is to maximize the total wealth of the society through the regulation of the system.
That is to improve the utilization rate of social resources. To achieve this goal, it is necessary to fully respect the development of the adjustment target
Laws, regulation and regulation based on the situation. The anti-monopoly law takes the market competition order as the object of adjustment, therefore,
The regulation of market competition behavior must be based on the different types of efficiencies achieved by different competition mechanisms.
As mentioned earlier, the economic efficiency can be divided into static resource allocation efficiency, production efficiency and dynamic
The difficulties faced by the anti-monopoly law that pursues efficiency as the goal of innovation efficiency are: the above three types
Efficiency often conflicts, making the anti-monopoly law have to choose between these three efficiencies. More complicated
The factor lies in how the increase in social wealth caused by the increase in efficiency is affected by different classes and different stakeholders.
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Distribution between the two, mainly refers to the consumer welfare issues in the anti-monopoly law.
2.2.2.1 Three kinds of efficiency trade-offs
First, the trade-off between production efficiency and allocation efficiency. Production efficiency and allocation efficiency are not always consistent.
The improvement of production efficiency not only depends on the cost reduction of the internal management system of the enterprise, but also comes from
And the reduction of costs caused by the expansion of production scale, that is, support the existence of larger-scale enterprises. And the best capital
The realization of source allocation efficiency (Pareto optimal) relies on enough atomic enterprises to compete in the market.
That is, a larger number of companies and a smaller scale of companies. Therefore, the realization of the two requires different market structures,
This creates contradictions.
Second, the trade-off between innovation efficiency and allocation efficiency. In social production, innovation efficiency and resource allocation effic
Whether there is a contradiction in the rate depends on which market structure the innovation efficiency is based on. If innovation efficiency depends on co
Competitive market structure, there is no contradiction between the two, because the efficiency of resource allocation also depends on competition, and eve
Perfect competition. If innovation efficiency depends on the monopolistic market structure, in order to obtain innovation efficiency, it must be sacrificed.
Sacrifice certain resource allocation efficiency.
Regarding the relationship between innovation efficiency and market structure, economists generally have two opposite positions:
Schumpeter, as a representative, believes that “large companies are more conducive to innovation”; ①The other is represented by Arrow, who believes that co
Competitive industries have stronger innovation incentives than monopolistic industries, and monopoly in addition to causing static welfare losses also
May delay technological progress. [40]② However, the empirical research on innovation and market structure has drawn a vague conclusion.
Discussion: Rapid technological progress is a subtle mixture of competition and monopoly. [41]
The above economic theories and empirical studies show that innovation efficiency depends on different industries and different technologies.
Under the circumstances, there are different market structure paradigms, and it is difficult to make an estimate of the degree of innovation and competition
General conclusion. Therefore, whether there is a contradiction between innovation efficiency and resource allocation efficiency is also the same.
A specific question rather than a general conclusion.
In summary, the efficiency of resource allocation, production efficiency and innovation efficiency are the efficiency targets of the anti-monopoly law.
The specific point is that its inherent contradiction has caused the ambiguity of the efficiency objectives of the anti-monopoly law, which is reflected extern
Monopoly law regulates competition and monopoly to varying degrees: in certain industries, such as high-tech industries, anti-monopoly
The law allows a certain degree of monopoly in order to maintain production efficiency and innovation efficiency; while in other industries,
For example, in industries where technology is relatively stable and mature, the anti-monopoly law still regards competition as the object of protection.
2.2.2.2 About consumer welfare
The law is a regulator of interests, and the anti-monopoly law is no exception. In addition to focusing on maintaining a specific market order to
① For Schumpeter’s theory of dynamic competition and innovation, see the section on innovation and monopoly in Section 1 of this chapter. Omit here.② Arrow’s specific views can be summarized as follows: First, compared with companies in a competitive environment, companies in a monopoly position will become lax,Inefficient, unable to seize research opportunities, and unable to engage in effective research. Second, companies with a strong monopoly position take into account the potential use ofAt the cost of innovating to re-equip its industry, it may refuse to carry out such innovations. Research resources in oligopoly industries may be used for a few innovation projectsOr styling improvements, and will not be used for more major pioneering research. For the same reason, a well-established monopolist may buy or suppressNew patents that facilitate rapid production changes.
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In addition to the pursuit of efficiency, perhaps the more important question for the anti-monopoly law is: should we pay attention to the distribution of beThe question, specifically, is the protection of consumer welfare.
On the issue of consumer welfare protection, the Chicago School is claiming that efficiency is the only goal of antitrust law.
Confuses efficiency with consumer welfare protection. The premise is that efficiency is equivalent to the efficiency of resource allocation.
Therefore, the strong pressure of market competition makes the protection of consumer welfare completely self-fulfilling by the market mechanism.
However, the post-Chicago school put forward a different view on this. ① On the surface, the post-Chicago school
Both the Chicago School and the Chicago School believe that economic efficiency is the core value of the antitrust law, but due to its analytical methods an
Different paragraphs have different views in essence. For example, some post-Chicago school scholars have comprehensively analyzed
After the economic consequences of monopoly, a different anti-monopoly target model from the Chicago school was proposed, that is, anti-monopoly
The law should make it the primary goal of preventing monopolists from transferring consumer welfare to monopoly profits, rather than merely mentioning
High overall resource allocation efficiency. Therefore, some scholars in the United States pointed out that the U.S. antitrust law takes efficiency as the ultim
But the relationship between this efficiency and consumer welfare has never been clarified. [42]
In addition, it is worth emphasizing that consumer welfare protection (or consumer interest protection) in the anti-monopoly law
Consumers in China and consumers in consumer rights protection are not the same concept. The former refers to the consumption of the entire society.
The consumer class is an overall concept, and the latter refers to specific buyers or users. The Anti-Monopoly Law
The protection of consumer welfare, as the American Bar Association pointed out in its proposal to my country’s antitrust legislation:
The main purpose of the antitrust law is to promote consumer welfare by protecting competition. What we call "consumers
“Welfare” refers to the welfare of all entities, including all government departments and workers that purchase and consume products and services.
Business operators, not just individuals. Moreover, in this sense, “welfare” is not government funding.
Aid or subsidy. The two departments’ review of “welfare” focuses on the quality, price and choice available to buyers.
At the same time, it focuses on the effective allocation of resources to meet the needs of buyers. U.S. antitrust laws pass to protect competition
And seek to achieve the purpose of improving consumer welfare, rather than protecting a competitor or competition group alone.
The interests of the body (domestic or foreign). [43]
After defining the category of consumer welfare, this article agrees with the post-Chicago school’s view that consumers
Welfare cannot always be realized automatically through the market, just as the Pareto optimal allocation of resources can only exist
Same as in the ideal perfect competition model. In practice, the protection of consumer welfare often goes hand in hand with efficiency goals.
Inconsistent. When Oliver E. Williamson, a representative of the New Institutional Economics School, proposed the merger model in 1968,
Clearly demonstrated the contradiction between production efficiency, allocation efficiency and consumer welfare and put forward his own views
point:
① Since the 1990s, due to new developments in industrial economics and game theory, some scholars have been able to use these economics
The new results re-analyzed the strategic behavior of the manufacturers and obtained more scientific results, thereby revising some conclusions of the Chicago School.Although these scholars did not form a unified point of view, because their anti-monopoly ideas were born after the 1990s, they are calledFor the post-Chicago school.
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In this model, Williamson assumes that the average cost curve of the firm is horizontal (that is, marginal cost, etc.
Average cost), the average cost curve before the merger is at a relatively high position (C 1 )
By shifting the average cost curve down (C 2 ), production efficiency is improved. Assuming that the company before the merger was a competitive compan
The price before the merger is given by the intersection point P 1 of the average cost curve and the demand curve. After the merger, the firm becomes a
Complete monopoly, the price of P 2 is given. After the merger, the company sets prices at a level that exceeds the average cost, and consumes
The loss of the producer is A 1 ﹢ A 3 , which includes the allocation efficiency loss A 1 , and the producer obtains the result of the improvement in producti
Income A 2 , and at the same time the welfare A 3 transferred from the consumer , the total change in social welfare is A 2－
A 1 is the difference between the increase in production efficiency and the loss in configuration efficiency. Williamson believes that the government needs t
The trade-off between production efficiency and allocation efficiency, as long as A 2 ﹥A 1 , although consumer welfare deteriorates, and allocation efficien
Losses occur, but the overall social welfare will still be improved due to the increase in production efficiency. [44]
The above-mentioned Williamson model shows that once consumer welfare does not automatically pass market competition
And the protection of it goes beyond economic significance. As economists in "study the profit of monopoly is
“Is it a social price” pointed out in the question, “As long as consumers pay extra to production due to monopoly prices,
For one dollar, the condition of consumers will deteriorate by one dollar, and the condition of producers will be better by the same amount. This kind of
The transfer from a consumer of goods to a monopoly owner does not affect the total social surplus-consumer and producer surplus
Sum. In other words, monopoly profit by itself does not mean that the size of the economic pie is reduced; it merely means production
The consumer's piece is bigger, and the consumer's piece is smaller. Unless for some reason, consumers are more
Is more important-this judgment is beyond the scope of economic efficiency-otherwise monopoly profit is not a social issue.
question. " [45]
This article believes that the anti-monopoly law, as an economic constitution, is of course not only a production issue, but also a
Assignment issues. If the focus on competition and monopoly reflects the efficiency value of the anti-monopoly law,
Consumer protection concerns reflect the fair value of antitrust laws. Otherwise, the anti-monopoly law loses its role
The regulatory role of the legal system on society is only an economic tool. Protection of consumer welfare should be
As the ultimate goal and core value of the antitrust law, the reasons are as follows: First, from the perspective of legal philosophy, human
It is the main body, the foundation of economy, the purpose of economic life, and the medium of production, consumption, exchange, and distribution.
Heart. People are consumers first, and the guarantee and realization of individual rights and interests is the ultimate goal of the law. In antitrust
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In the field of law, consumers and producers (operators) are showing serious imbalances in strength and information.
The advent of the era of knowledge economy has made this inequality increasingly magnified, placing consumer welfare in the first place.
It embodies the justice and legitimacy of the anti-monopoly law as an economic charter. Second, protect consumer welfare, especially
It is the free choice of consumers and the best means to realize the anti-monopoly law's function of maintaining competition. Monopolistic competition
In an oligopoly market, there are alternatives to monopolistic products. If the monopolist charges high prices, consumers will buy
Alternatives, monopolists cannot achieve their goals, especially in the era of knowledge economy, where the margins of products and services
The cost is extremely low. If the producer implements a monopolistic high price, or attempts to raise the price after a predatory pricing strategy to compens
To make up for the loss caused by the original low price, substitutes can appear very quickly. Consumers vote in currency, and finally
In fact, it has curbed the emergence of monopoly high prices. Historically, the anti-monopoly law was born from the high price of monopoly
Resistance. In 1867, a man named Oliver. Hudson. Kelly’s former U.S. Department of Agriculture employee in Minnesu
Dazhou launched the Granger Movement. The main goal of this movement is to oppose the excessively high freight rates of railway transportation.
They believed that the high railway freight rates at that time caused damage to the economic development of agricultural areas. At 7 years
In time, Granger has more than 20,000 branches and nearly 1 million members. Its political requirement is to resolutely oppose
Monopoly, in addition to the requirements of railway reform, they also strongly demand the enactment of anti-monopoly legislation. This movement is
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The important social background of the Sherman Act of 1890. [46] Finally, consumer welfare is to consider a certain lineIt is the most important criterion for whether it should be banned or even sanctioned. Looking at the anti-monopoly practices of various countries in the wo
Righteousness to behaviorism, from the principle of illegality to the principle of reasonableness, the judiciary
This standard has experienced protection of competition or protection of competitors, priority of efficiency or ensuring the participation of small and mediu
The anti-monopoly law also has different focuses in different periods. In the era of knowledge economy,
It highlights the interaction between the monopoly effect produced by intellectual property rights and the monopoly and monopoly behavior in the anti-mon
Organization and confrontation, how to strike a balance between the protection of intellectual property rights and anti-monopoly?
Concepts and principles such as market dominance are applicable to software, information and other industries that seem to be inadequate
Under the circumstances, consumer welfare can be regarded as a clear criterion. For example, in the US Microsoft case, Judge Jackson
It is believed that Microsoft’s main "crime" is "using its influence to hinder technological innovation, causing consumers to lose
"Opportunities to use more and better products" and "refusal to respect consumers' right to choose" have caused a serious impact on consumers.
"Indirect damage".
The protection of consumer rights by the anti-monopoly law is not only a positive aspect of the anti-monopoly law as an economic constitution.
Appropriateness is also a product of historical development.
Judging from the historical background of the world’s first antitrust law, the Sherman Law, consumer welfare has already
It is a very important driving factor among them. Congressman Sherman talks about protecting consumption during legislative debates in Congress
The author said: “The purpose of the bill is to authorize the court to provide compensation to the victims of the merger.” “Sometimes people say
After the merger, the production situation of the enterprise has been improved, and it can provide consumers with low-priced products. But all experience t
Obviously, the cost savings fell into the pockets of the producers. The price consumers can enjoy depends on the commodity supply
The combined company hopes to reduce the supply of goods. "After the passage of the Sherman Act,
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The price level has been significantly suppressed, has basically remained stable and has slowed down from time to time. Price index in 1890
Almost the lowest since the Civil War. Congressman Patman once said during the debate: "The protection of competition is for consumers.
Interests, and the welfare of the working class, producers, and the entire people. "From the standpoint of Congress, "Consumer welfare
"Profit" is an important part of "social welfare", that is, the content of "social welfare" in anti-monopoly activities.
body. [47]
At present, in addition to the United States, the legislation of other countries also stipulates the content of consumer rights protection. like
Article 1 of Canada’s Competition Act revised in 1990 stipulates that: “The purpose of this law is to protect and encourage
Encouraging competition in Canada...enable consumers to enjoy low-cost and high-quality services. " [48] Japan revised in 1996
The "Japanese Competitive Private Monopoly and Ensuring Fair Trade Act" will also indicate the purpose and purpose of Article 1
“The purpose of this law is to prohibit private monopolies, improper trading restrictions, and unfair trading parties.
Law, ... to ensure the interests of general consumers and promote the democratic and healthy development of the national economy. " [48] European Union
When Article 81 of the International Treaty exempts anti-competitive conduct that should have been prohibited, one of the reasons
To obtain considerable benefits.” Article 1 of my country’s newly promulgated “Anti-Monopoly Law” also stipulates: “In order to
Prevent and stop monopolistic behavior, protect fair competition in the market, improve economic operation efficiency, and safeguard consumer interests a
To promote the healthy development of the socialist market economy in the public interest of the society, this law is enacted. "From the above legislation an
Practice can undoubtedly conclude that consumer welfare is the object that the anti-monopoly law has been committed to protecting.
2.2.3 Basic principles of intellectual property licensing anti-monopoly laws and regulations
When conducting anti-monopoly regulations on intellectual property licensing, the basic position of this article is: intellectual property
Licensing acts are regulated by the anti-monopoly law like other contract acts, and neither enjoys due to the existence of intellectual property rights
Exemption will not confuse intellectual property rights as market power and lead to stricter scrutiny. Therefore, above
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The efficiency value and fair value of the anti-monopoly law analyzed and demonstrated are fully applicable to the anti-monopoly law on intellectual properules.
In a nutshell, the principle can be expressed as: to maintain the existence of competition (including potential competition) as the basic
Means; take economic efficiency as the core tool value, among which innovation efficiency is the priority; take consumer welfare as the
Ultimate purpose value.
First, to maintain the existence of competition as a basic means. For antitrust law, competition is universal
, Eternity, and monopoly is local and individual. Therefore, when analyzing the anti-monopoly law’s impact on intellectual property
When regulating licensing behavior, the first thing to consider is the harm to competition. If an act does not affect the competition
Negative effects are completely irrelevant to the anti-monopoly law. However, generally speaking, behaviors that are subject to antitrust law
They are all behaviors that have a certain negative impact on competition. In terms of intellectual property rights, such as tying, refusing to license
Such behaviors will hinder competition in the relevant market. According to the efficiency analysis in the anti-monopoly law
Analysis, competition and efficiency are not always a positive relationship. Under the premise of producing higher efficiency, there is a certain degree of co
The sacrifice of degree is tolerable. However, this does not mean denying the basic significance of competition to the antitrust law.
If an act seeks efficiency in a way that completely negates competition and potential competition, it is an anti-monopoly law
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Intolerable. When judging whether a certain behavior is sufficient to completely offset competition, not only consider existing competition
The structure of the industry, it is necessary to examine the level of entry barriers in the industry, the size of sunk costs, and other factors that affect potenti
Impact. Take Microsoft’s tying behavior as an example. In the software industry with high network effects, Microsoft’s tying
The behavior fundamentally denies the possibility of market competition for related application software (such as browsers). Therefore, Europe
The League imposed corresponding sanctions on this behavior.
Second, take economic efficiency as the core tool value, and give priority to innovation efficiency. Involving intellectual property
In the permitted anti-monopoly regulations, if a certain behavior is harmful to competition, further analysis is needed.
Can the loss of resource allocation efficiency caused by this kind of harm to competition be compensated by production efficiency and innovation efficienc
Complement, especially the latter. Focusing on innovation efficiency is essential for achieving a win-win situation between anti-monopoly law and intellec
Ran conclusion. The free competition market environment created by the antitrust law is an important source of innovation. First of all, the enterprise
They often compete with each other in technological reform and development, and strive to be the first to launch new products, services or more advanced
Products or services to gain a competitive advantage. In some industries, companies innovate not just to gain
Intellectual property, and more importantly, gain first-mover advantage through innovation. For example, in the software industry, competitors are more
What is concerned is to gain a competitive advantage by occupying the market first and expanding the installation base, while protecting the copyright of th
Protection is not the primary goal. Second, in competition, companies can also provide more efficient management through innovation.
Management methods, thereby reducing costs and gaining an advantage in the competition. Finally, market competition makes competitors not only
To compete for the existing market, it is more important to develop the unexpressed needs of consumers, and to develop new products
Products to be satisfied. The protective effect of intellectual property on innovation is beyond doubt. The origin of intellectual property rights should be rig
Liren’s creative achievements, not the fruits of ordinary labor. [49] Taking patents as an example, to obtain a patent right,
The applicant’s invention must be novel, non-obvious (advanced) and practical. economics
The author pointed out that if there is no intellectual property protection, the inventor cannot prevent others from thinking about their own creative intellige
The free-riding behavior of the results, of course, can not get an effective return on their own investment, so the incentive of innovation
Greatly reduced. Therefore, the existence of intellectual property rights, as declared in the US Constitution, is for more and better
The creation of creative works and the resulting increase in the public interest of society. Therefore, in intellectual property licensing, such as
If a certain act endangers competition, such as a territorial restriction clause, it is generally regarded as dividing the market in antitrust laws.
Was convicted of breaking the law, but considering that the
Market profits, thereby increasing the incentives for inventions and creations, which is generally permitted under the anti-monopoly law.
However, it must be pointed out that in addition to the production efficiency can be measured in a certain way,
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Both home and innovation efficiency are basically difficult to measure, especially innovation efficiency is almost impossible to measure. so,
When considering innovation efficiency as a defense against competition, the enforcement of anti-monopoly law can only rely on empirical or
Intuitive judgment. In practice, the strong IPR protection countries represented by the United States basically adopted a
The attitude of "Ning Zong Do Not Wrong" shows a strong preference for innovation efficiency.
Third, consumer welfare is the ultimate criterion for judgment. Social and economic growth must ultimately be reflected in the society
Increase in individual welfare of members. In the intellectual property system, although there is no clear reference to consumer welfare,
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It is expressed as a public interest, but to a large extent, the two overlap with each other. As mentioned before, knowledge
The existence of the property rights system is to encourage more and better inventions and creations, thereby providing more diversity for the society.
More convenient choices and more efficient production and life. Therefore, some scholars argue that the intellectual property system
It is instrumental in nature and serves the fundamental goal of the public interest of society. ①In order to achieve this
The goal is to temporarily grant the inventor a certain degree of monopoly in return. Some scholars believe that knowledge
Property rights are a contract signed by the society and the creator of the invention in exchange for a monopoly in exchange for openness. Of course, there
The viewpoint of the private property of intellectual property rights. However, regardless of the interpretation of intellectual property rights, the intellectua
The importance of the public interest is unquestionable. Feng Xiaoqing, who has a lot of research in intellectual property law and philosophy
The public interest of the intellectual property system has been pointed out; “Intellectual property is a kind of strong public interest
The qualitative private rights also indicate the need for personal interests in intellectual property law, especially the interests of intellectual property owners
It will maintain a balanced and coordinated relationship between the overall interests. Intellectual property law balances intellectual property rights and
The public interest relationship has promoted the realization of the fair and just social goals of the intellectual property law to the greatest extent. " [50]
Therefore, the consideration of consumer welfare in intellectual property licensing is not only the final price of the anti-monopoly law.
Value is also the legal benefit of intellectual property law. From a macro perspective, the anti-monopoly law maintains fairness
The competitive environment urges companies to invest in R&D costs and continue to innovate, thereby reducing production and sales costs and giving con
Consumers provide a steady stream of high-quality and low-cost products and services, so that consumers can share in time the technological advancement
It brings convenience and comfort, and improves the quality of life. This is the most important thing the anti-monopoly law pursues to protect consumer we
The fundamental social goal. From the perspective of micro-systems and norms, the anti-monopoly law’s protection of consumers is concentrated
There are two aspects of pricing and freedom of choice: First, to ensure that consumers are not exploited by monopolistic high prices. Second,
Protect consumers' right to choose freely and provide a diversified consumption environment.
Establishing consumer protection as the ultimate goal has a directional meaning for the anti-monopoly regulations of intellectual property licensing
righteous. Because the multiplicity of efficiency as the goal of the anti-monopoly law often leads to conflicting results.
Theory, and these different efficiencies are immeasurable, at least not beforehand. Therefore, with economic efficiency
As the only tool of legal analysis, it cannot reach the ideal height in the real legal environment, just like the United States
Professor Robin Paul Malloy of the New Law and Economics School pointed out: “The efficiency analysis is incomplete-it
It is not dynamic, and does not reflect the uncertain nature of creative discovery,...the efficiency standards are also problematic.
Because the results it produces are subordinate to alternative interpretations (based on certain coefficients and preconceived purposes). [51]
Consumer welfare, as a relatively clear criterion for judgment, can often provide in the complex and ever-changing efficiency fog.
A compass. For example, the draft guidelines for exclusive abuses (Draft
Guidance Paper covering exclusionary abuses) pointed out that for the abuse of dominance
The analysis is divided into two steps: the first is to analyze whether a specific behavior has a potential foreclosure effect (foreclosure
① Regarding the legitimacy of intellectual property rights and the intellectual property system, my country’s academic circles have not yet reached a complete consensus. The general dispute lies in the intellectual property rigThe nature of public rights and private rights, whether intellectual property rights are legal rights or natural rights, etc. Since the focus of this article is not to discuss intellectual propertyPhilosophy of law, so no detailed introduction and argumentation will be made. But it is undeniable that as an anti-monopoly regulation of intellectual property rights, this article tends to beThe view of legal rights. For details, see Li Yang: "Frontier Research on Intellectual Property Theory and Practice", Law Press, 2001 edition.
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effect), and then analyze whether the behavior with obvious repulsive effect will cause harm to consumers. In this way, one
A behavior that merely excludes inefficient competitors will not be regarded as an abuse of dominance. [52]
It is worth pointing out that when establishing the target value of consumer welfare protection, it is necessary to distinguish between consumers
The long-term value and short-term value of In intellectual property licensing, many actions based on the effect of intellectual property incentives
In order to be allowed by the anti-monopoly law, this may increase the economic burden of consumers in the short term to a certain extent.
But it is beneficial to consumers in the long run. Therefore, the anti-monopoly laws and regulations on the licensing of intellectual property rights, from
From an economic point of view, it is a Kaldor-Hicks efficiency, that is, in one economic state to another economic
In the transition of state, some people’s gains are at the expense of others’ losses. Therefore, the resulting
The improvement of social welfare may be ambiguous-it has almost the same effect as the Pareto principle-such as
If the beneficiary has the potential to compensate the loser, the latter is willing to accept this change, while the former’s
The environment can still be improved. [53]
All in all, the three key words for the anti-monopoly regulations in intellectual property licensing should be: competition,
Innovation efficiency and consumer welfare protection. On this basis, the author attempts to summarize a comparison of specific licensing behaviors.
Operational conclusion:
(. 1. ) Licensing is harmful to competition, but it can achieve significant innovation efficiency and improve the overall society. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Welfare, and these behaviors are essential to achieve these efficiencies. Among the various possible choices, cancel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The harm caused by the consumer’s welfare is the least. Under these premises, the permission should be allowed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(. 2. ) If the effect of a certain behavior on innovation efficiency is neutral or uncertain, it will be used to benefit consumers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .To determine whether it is allowed or not.. . . . . . . . . . . .
(. 3. ) In any case, this behavior cannot lead to a permanent and comprehensive elimination of competition.. . . . . . . . . . . . . . . . . . . . . . . . . .The intellectual property anti-monopoly laws and regulations are based on dynamic competition, which means that the formulation of laws and
Implementation must have greater flexibility and economic rationality. Of course, this also shows that the anti-monopoly law in this field has encountered p
Here comes a bigger challenge. What is even more difficult is that in all areas of intellectual property licensing, due to the fact that each property
The nature and characteristics of the industry are different, and the forms and laws of competition within the industry are often different.
It may be unrealistic to analyze the paradigm to cover all the competitive characteristics of the industry related to intellectual property rights. The above the
The paradigm can only provide the most general direction and guidance. For example, in the Microsoft EU case, European scholars
Also criticized that the 2004 decision made people doubt whether the committee was misled by Microsoft’s apparent monopoly position, and
Ignore the characteristics of competition regulation in the application software market. [54]
2.2.4 Market Definition of Anti-Monopoly Regulations on Intellectual Property Licensing
2.2.4.1 Market Definition in Anti-Monopoly Law
The central task of the anti-monopoly law is to maintain and promote competition, and competition always occurs in a certain market.
Therefore, to measure whether a certain behavior is harmful to competition and to what extent, or to judge
Whether it has market power, the first step is to define the relevant market. The market is a production or consumption
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The arena where important substitutes occur in the field of fees. Generally speaking, the market of antitrust law is from two dimensions of product and geo
measure. From the perspective of the product dimension, the market refers to a series of consumers who can reasonably replace each other for the same pur
Generation products, that is, refer to the cross-price elasticity of the market. In addition, the definition of the product market must be considered
Consider the perspective of producers' supply, that is, the cost of potential producers to enter the market and other factors. From
From a geographical perspective, the geographic scope of the product market depends on the seller of the product outside of its direct sales point
The ability to sell in the right place. Specifically, it means that sellers can sell, and buyers can
Actually change the geographic scope of the supplier. [55]
2.2.4.2 Three types of market definitions in intellectual property licensing
The general situation of intellectual property licensing means that the intellectual property owner allows the licensee to use a specific technology to
To manufacture and sell certain types of products. Therefore, in the market sense of the anti-monopoly law, licensing may result in
The impact on competition and innovation may occur in the technology market of the licensed technology, or in the technology market.
Within the product market area of similar products. In other words, there are at least two market definitions for intellectual property licensing:
Technology market and product market. At the same time, since intellectual property and anti-monopoly laws regard innovation as a shared value between
The antitrust law’s regulation of intellectual property licensing also takes the promotion of innovation as the basic policy objective. In the United States
In the 1995 Antitrust Guidelines for Intellectual Property Licensing, the concept of an innovative market was also put forward. therefore,
In the market of intellectual property licensing, three aspects: product market, technology market and innovation market should be examined separately.
First, the product market. In the product market, the definition of intellectual property licensing is in line with other anti-monopoly laws.
The definition of the product market of the domain is the same. Competitors in the relevant product market can be divided into de facto competitors and po
Competitors in. The former refers to companies that produce similar products or provide similar services when entering into a technology transfer agreeme
Industry. According to paragraph 7 of the European Community’s "Notice on the Definition of Relevant Markets", the relevant product market refers to the
The characteristics, price and purpose of the product, and all products and/or services that are regarded as interchangeable or replaceable by consumers.
In the United States, "cross-elasticity of demand" is generally used to judge. the latter
It refers to the fact that when the agreement is concluded, they are not de facto competitors, but there are reasons to believe that they will soon be able to be
By. According to the 1997 Horizontal Merger Guidelines of the U.S. Department of Justice and the Federal Trade Commission,
When contenders, it can be assumed that the monopolist pursuing profit maximization implements a "small number but meaningful and long-term
“Short price increase” (i.e. SSNIP standard) and analyze the buyer’s reaction to the price increase. In most cases, the authorities will
The foreseeable increase is set at 5%. That is, if an enterprise can timely and without affecting the intellectual property rights of other enterprises
In the case of entering the relevant market, this company is a potential competitor. [18] In general, the product market’s
The definition generally needs to examine the product itself and the supply of two major aspects, the former often refers to the product’s characteristics, pri
Use, consumer preferences, etc. The latter refers to market entry barriers, supply substitution, etc., that is, when
When the price increase of a specific product leads to a shift in consumer purchases, whether the market can provide a timely and adequate replacement
Products to meet demand, and among them, the barriers to market entry—especially the exclusiveness of intellectual property rights—are examined.
The legal barriers brought are an important part of the definition of the product market in intellectual property licensing. When based on knowledge
When intellectual property rights cause entry barriers, the definition of the product market is often relatively narrow.
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Second, the technology market. Technology market refers to when the licensed technology can be independent from the products containing the techn
The licensing market formed when it was established. ①For example, there may be several types of technologies in the communication technology market at t
Technical standards can provide roughly similar communication methods and communication functions with similar implementation levels. In this case,
If the licensor takes advantage of the restrictive competition conditions attached to the license-such as price discrimination-to exclude others
Licensing of similar technologies may cause harm to technology market competition. In 1994, US v.
In the Pilkington Plc. case, the court held that the defendant’s tie-in clause and price discrimination clause in the license agreement
Will lead to a licensing market for float glass technology. [56] United States 1995
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In the Antitrust Guidelines for Intellectual Property Licensing in 2004, the technology market is defined as: including licensed intellectual property
Rights and their approximate substitutes—that is, technologies or goods that are sufficiently similar to be substitutes that can be substantially
Restrict the exercise of market power related to licensed intellectual property rights.
In the United States, the first to propose and define the concept of the technology market was the 1988 International Cooperation Antitrust
Lass Law Enforcement Guide. In this guide, the technology market is proposed and a more detailed definition method is made:
The relevant (technology) market includes all alternative technologies that users will switch to when the license fee increases by 5-10%. Mutually
The relevant (technical) market includes functionally alternative technologies and other technologies used in the production of alternative products.
Surgery. [57] It can be seen that this method is borrowed from the definition of the product market, mainly relying on consumer demand.
Sum the economic factors of price elasticity. In 1995, the guidelines inherited this approach and were further developed.
exhibition. However, the definition of the technology market often shows differences from the traditional product market, the biggest of which is
The difference is that the technology market may be a current-goods related technology market (current-goods
technology markets), it may also be a future-goods technology market (future-goods
technology markets). In the latter case, it is very important to obtain and define technology market data.
Big difficulties, and more cases may be a mixture of the above two types of markets. Therefore, in the 1995 guidelines,
If the market share data or other evidence of market power cannot be obtained, and the competitive technology has obvious
Comparable efficiency, the same market share is allocated to each technology in the competent authority. For new technologies, the competent authority
The best available information is generally used to evaluate market acceptance within two years from the start of commercial promotion.
Some scholars pointed out that the following four rules can be applied to determine the dominance of certain intellectual property rights in the techno
Standards: (1) The market demand elasticity of products produced by this technology is small;
The proportion of the production cost is very small; (3) There is no alternative technology or the alternative technology cannot be compared with the licens
Technology comparison; (4) The cost of transferring to other alternative technologies is high. [58]
Third, innovate the market. The innovation market is closely related to R&D activities, and only those who are engaged in related R&D
Only when the power is connected with the specific assets or endowments of a specific company, it is necessary to consider the competition of licensing be
Competitive influence. The concept of innovative markets first appeared in the National Cooperative Research Act of 1984 (National Cooperative Research
Cooperative Research Act, NCRA for short). In the 1995 guidelines, the innovation market includes
① If a technology is licensed as an integral part of the product, there is no need to analyze the technology market separately, but only the product market analysis.A typical example is the sale of software products. When purchasing the software, the purchaser must implicitly be permitted to use the copyright of the software.The content contained in the software is licensed.
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The research and development of special new or improved goods or methods and similar substitutes for such research and development. This approximate
The use of market power in related research and development constitutes major restrictions on various achievements, technologies and goods. Introduce inn
The concept of the market is mainly based on the theory of dynamic efficiency, that is, in addition to price competition, through the development of new pr
Creating new market demands or improving existing products is also an important means of competition, and can improve the entire society
The efficiency of the meeting is not conducive to consumer welfare, so the impact on innovation must be measured for licensing behavior. example
For example, in cross-licensing or grant-back clauses, it may have a negative impact on innovation.
However, the innovation market has certain difficulties both in theory and in practice. First, according to the 1995 guidelines,
The competent authority’s market share of innovation market participants is based on the determinable assets or endowments on which innovation depends
The share of grants, the share of research and development expenses, and the share of related products. However, in practice, R&D
Costs are not necessarily related to the level of innovation. Second, the innovation market is often a pure research market
The market is not necessarily related to the final product or service. Therefore, the innovation market is a theoretical market.
Contenders compete in a product market that does not currently exist. [59] It is for the above reasons that for innovation
The definition of the market is often unable to apply the traditional method of defining the product market or technology market. In most cases
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We can only examine the degree of competition participation in this market. For example, if in addition to investigating companies,There are four or more companies that have the same R&D capabilities, or there are similar substitutes for their products.
There is no negative impact on the market. Companies with R&D capabilities should include: (1) R&D of approximate alternative technologies
And production enterprises; (2) enterprises that do not produce but engage in research and development activities of similar technologies; (3) currently
Companies that do not conduct production and R&D but have the ability to conduct R&D once incentives are provided. [60]
Finally, it is worth noting that there is a special feature in the market definition of intellectual property licensing: immediate
Between factors. ① When a patent or other intellectual property is about to expire, barriers to market entry and market share must be
However, changes have occurred, especially when the patent is an important factor in the dominant position, considering the intellectual property
The validity period of the right is a step that cannot be ignored. From this point of view, it also reflects dynamic competition and innovation.
Features of the new efficiency.
2.3 Special provisions of anti-monopoly regulations on intellectual property licensing in the new economy
2.3.1 The concept and characteristics of the new economy
The term new economy first appeared in the United States. On December 30, 1996, the US "Business Week" proposed that "the United States
The concept of “New National Economy” was subsequently officially recognized by the United States ② and was widely adopted worldwide. However,
The definition of the new economy has always been a controversial issue. People often refer to the new economy as the knowledge economy,
In this regard, some scholars believe that the so-called new
The concepts of economy, network economy, information economy, and digital economy all refer to the same object, but
① Of course, the time factor may also have to be considered in the definition of the market that has nothing to do with intellectual property rights, such as the seasonality of the fruit market. However, intellectual property rightThe time factor in the definition of relevant markets is often very important.② For example, in 1997, Clinton confirmed the concepts of the new economy and the knowledge economy in official language and adopted it as a national policy to promote economic growth.In June 1999, when Clinton reviewed his economic achievements since taking office, he said: "I am indeed confident in the new economy."
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The translation is different from the title. Therefore, the new economy mainly refers to the economy with information as the main resource symbol.
Part of economic activities. [61] However, some scholars believe that the above-mentioned formulations are one-sided.
Shows a certain aspect of the new economy. In fact, the new economy is a combination of the above three statements. In other words, new
The economy is a new birth based on information technology, knowledge elements as the driving force, and the network as the basic production tool.
Production method. [62] This article believes that the core of the new economy is the knowledge economy, and knowledge is the decisive force of the new ec
According to the definition of the Organization for Economic Cooperation and Development (OECD) in the 1996 Science, Technology and Industry Outloo
As a new economic form, the knowledge economy has the following four characteristics: (1) Research and development of science and technology
It has increasingly become an important foundation of the knowledge economy; (2) Information and communication technology
Central position; (3) New service industries play a major role in the knowledge economy; (4) People’s quality and opportunities
Can be a prerequisite for the transition to a knowledge economy.
In terms of the extension of the new economic concept, the scope of the industry involved is very wide, except for the leading information technology
In addition to industries, it also includes high-tech and high-tech industries such as biochemistry, new materials, and new energy.
Judge Na’s speech entitled "Antitrust Law in the Context of the New Economy" at the American Bar Association in 2000
It pointed out that the “new economy” industry mainly refers to three different and interconnected industries: the first one is computing
Computer software manufacturing; the second industry consists of Internet-based companies (including Internet access
Providers, Internet service providers and Internet content providers); the third industry is to provide
Describe the communication service and equipment industry of the two industries. The new economy also includes other industries, but this is what I want
Three industries. [63]
The new economy exhibits many characteristics that the traditional economy does not have. Among them, the anti-monopoly law
There are the following aspects:
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First, high fixed costs and low marginal costs. Most industries with the characteristics of a knowledge economy show highFixed costs (fixed costs), low marginal production costs (marginal production costs)
Production structure. As mentioned earlier, the new economy is centered on the knowledge economy. In the new economy industry, except for the commun
In addition to the relatively high fixed cost of infrastructure, other industries such as biochemistry and software use knowledge as the main production inpu
Once put into production, the marginal cost of its products or services is very low. Therefore, this kind of production structure allows companies to
Not only must invest huge amounts of money to research and develop products, but also invest in the establishment of a physical network (physical
network) or virtual network (virtual network) is used to manufacture and distribute products. This feature makes
When deciding on marketing strategies, manufacturers will focus on their effects on increasing the demand for products or services, in order to be able to s
Amortize high fixed costs and realize the economic benefits of increasing returns to scale. Operate with Windows produced by Microsoft
Take the system as an example. After the product development is completed, produce and sell an extra copy of the Windows operating system software.
This increase can be said to be minimal or even negligible. In terms of price performance, this strategy is often
Predatory pricing will appear in the period to gain market share, and then monopoly high prices will be implemented to obtain excess profits. and
Regardless of whether it is monopolistic high prices or predatory pricing, since its main input is R&D costs (intangible assets), determine
It is very difficult to judge whether there is a monopoly from a reasonable market price. At the same time, in
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In the new economy industry, large companies can easily monopolize the market by virtue of their low unit cost and make new entry
It is difficult for them to compete with them.
Second, network effects. Another characteristic of the knowledge economy is the universality of network effects. So-called network efficiency
Should (network effects) refers to the value of a product or service, which increases as the number of people in demand increases
In addition, the reason why the industry has network effects is usually based on the close relationship between the product or service in the use process.
Complementary consumption relationship. It manifests as direct network effect and indirect network effect. The former refers to the mutuality of homogene
Compatibility, the latter refers to the mutual compatibility of complementary products, such as discs and DVD players. This basic economic characteristic,
Is the so-called network externalities, or demand-side economies of scale
(Demand-side economies of scale). [64] That is, if other conditions are the same,
A larger network will be better than a smaller network. And the Internet is "big is good"
The aspect of positive feedback makes the phenomenon of positive feedback generally appear in today’s information economy
System. Positive feedback makes the strong stronger and the weak weaker. When two manufacturers are in a strong positive feedback
When competing in the market, only one manufacturer will be the winner. Economists call this kind of market a "progressive" market.
(Tippy market). [65] Network effects also make the market the first mover (first-mover)
The huge advantage that a manufacturer takes early and decisive action in a market can help this
The manufacturer finally wins the user. Telephone is an industry with network effects that appeared earlier. Just imagine if there were only
With a phone, that would be meaningless. If everyone uses different computer word processing software, they can’t share
We can’t appreciate the convenience brought by computer writing. In other words, only when using the phone,
The more people who have fax machines and Word documents, the more we can appreciate the convenience, and the more it improves
Consumers' willingness to use telephones, fax machines, or Word documents. With the emergence of network effects, manufacturers are
In order to ensure the existing consumer group and continue to expand the market share, the product standardization has become their common competition
Strategies, therefore, network effects rely on standards to function properly. In a network, there must be rules
Or commonality, so that network participants can communicate with each other. Video format, communication protocol and computer operation
The systems are typical examples of such technical standards. Customers need common standards because they like predictability
Compatibility, compatibility and mutual operability. In a new technology field, the cost and cost of developing an accepted standard
The risks are great, but the end result is also very tempting. The need for uniform standards usually means only
Only a company can have the last laugh. This "the winner-take-all" feature makes
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A company is likely to be dominant in a market.Third, the consumer lock-in effect. Economists have determined that consumers must consume before they can perform
Products that are evaluated are called "experience good". Knowledge product or service every time
When they are consumed, they are all empirical products. Therefore, when consumers choose to use a certain technology or knowledge product,
When you want to switch to other similar products, the switching costs are very high. [66] This transfer
Costs include: the cost of purchasing new equipment or technology, the transaction cost of transferring suppliers (including search costs),
The cost of learning to use new equipment and functions in a new technological environment, consumers’
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Uncertainty in quality, abandoning familiar procedures and psychological brand loyalty, etc. [67] When the conversion cost is sufficient
When consumers are unable or unwilling to give up the product easily, a lock-in problem occurs. exist
In this case, only the new product or service can bring consumers benefits that are significantly greater than the switching cost to induce
Consumers turn to new products or services, and this obviously makes the entry of new products face more obstacles or pay
Out more costs. In other words, new products cannot compete with old products in a fair environment.
On the other hand, the incompatibility of standards under the network effect is also an important reason for consumer lock-in. exist
When several technical standards exist in a product or service market at the same time, the
As far as the manufacturer of the foundation (ie the installation foundation) is concerned, on the one hand, it strives to promote its own technical standards
De facto standards, especially for other complementary products (ie products of different quality, such as electricity
Computer and operating system, DVD player and disc) to implement standardized matching, thereby expanding indirect network effects and increasing
Consumers’ confidence in buying their own products will further expand their market share and increase the scale of demand for products.
Enter a virtuous circle. On the other hand, for homogeneous products (ie, competitive products), whether to promote mutual compatibility
The content depends on the network effect and competition effect produced by product compatibility.
Should be dominant, then manufacturers have the motivation to implement product standardization; on the contrary, if the competitive effect is dominant,
Then manufacturers have no incentive to implement product standardization, because compatibility will strengthen the competition of homogeneous produ
Play the competition between different manufacturers’ products. For example, Microsoft has been promoting standardized supporting production with com
However, it firmly grasps the exclusive manufacturing of the software manufacturing industry and does not allow other software manufacturers’ products t
The compatibility of operating systems and application software is due to competitive strategy considerations.
Fourth, Value-based Pricing and price discrimination. In the new economy industry
, The price of knowledge products is often determined by the value of the product to consumers, instead of following the traditional
This is the basis for pricing. Due to the high fixed cost and low marginal cost of the new economy industry, if
Marginal cost is used for pricing. As the marginal cost of a single product tends to zero, the price of the product will increase.
The closer it is to zero, this is something that any rational enterprise is unwilling to do. On the other hand, Posner pointed out that knowing
The feature of low marginal cost of knowledge products makes it impossible to prevent other
The free-riding behavior of enterprises on their own innovation achievements, no enterprise is willing to invest a lot of research and development funds to i
Therefore, the monopoly provided by intellectual property rights expands the output of knowledge products, rather than monopoly in the usual sense.
The interruption suppressed the output. Under the premise of intellectual property protection, the intellectual property owner sets a positive price for the pr
Even if its marginal cost is zero, this kind of pricing may cause some consumers to switch to other alternatives.
[63] In order to maximize the number of consumers to expand the installation base and obtain the maximum profit, knowledge
The price of the product is often determined according to the value of the customer, and the price change is mainly based on the customer’s
The evaluation of the value of the product and the degree of sensitivity to price. That is, sell to customers who are highly rated or who are not sensitive to p
For the high-priced hardcover version, the low-priced or price-sensitive customers will sell the low-priced paperback version.
[61] In the antitrust law, this pricing method is often defined as price discrimination. For example, Microsoft’s products are
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To maximize profits through price discrimination policies. Therefore, the regulation of price discrimination in the traditional anti-monopoly law
It has been challenged in the context of the new economy.
Fifth, monopoly low prices caused by product durability. An important feature of knowledge products is durability.
That is, it can be used for countless consumptions. For example, if you don’t consider upgrading, a software program can
It is used forever without the need to purchase new substitutes. Most information products have the same characteristics because they
It can be used or reused almost without restriction. Therefore, the knowledge products produced by an enterprise must not only
Competing with other similar products, but also facing competition from the products they have sold. In other words, follow them
To compete with its customer base. This will force them to keep their products sold at lower prices. As the economist Luo
What Nader Coase had anticipated many years ago, and what other economists have recently proved, is that the production of durable products
Industry, market power can hardly be said to be a problem. [68]
In the real market, in order to avoid the incompetence between oneself and oneself due to the durability of knowledge products
In a profitable situation, companies must either use leasing or continue to upgrade their products.
Overcome this problem. However, the existence of sold products will hinder the pricing of upgraded products, because upgraded products
Consumers of future products have the option of continuing to use old products, and if demand grows rapidly,
When making price decisions, high prices will make companies use current profits to erode future profits, because today’s high prices
Will reduce the growth in demand for its products. Especially in the network market, in order to expand the installation base, companies have
There is a strong incentive to set low prices, because this will enable companies to set high prices in the future, unless the innovation speed
The degree makes the future completely uncertain, and it is possible for companies to abandon the pursuit of monopoly profits caused by network effects.
Charge high prices at the moment. Another important factor is the self-competition of vertically integrated companies, that is, if
An enterprise not only owns the network, but also operates some value-added services. Then, in order to expand its value-added services
The company tends to maintain a low network entry price. Taking the above factors into consideration, we may get
Come to this conclusion: the reason why a company can have a monopoly market share is precisely because it does not charge a monopoly price
grid. [63]
2.3.2 Theoretical disputes about the new economy and anti-monopoly law
2.3.2.1 Different perspectives
Taking the Sherman Act of 1890 as a starting point, the basic principles and system of the anti-monopoly law were established in the 20th century.
Under the background of the traditional industrial economy, it gradually emerged and developed. In the new economic industry, the anti-monopoly law
Can the regulation of competition agreements, abuse of dominant position or market structure continue to apply? For this problem, learn
People have different opinions, which can be roughly divided into two categories:
First, definitely. Assistant Attorney General Joe Klein of the Antitrust Bureau of the U.S. Department of Justice
On the 29th of the New York State Bar Association, a titled "The Importance of Antitrust Enforcement in the New Economy Era"
In his speech, he stated the following point: Some people think that the history of antitrust is good, but the current
It is doubtful whether antitrust laws are compatible with today's new economy. Because the Sherman Act was enacted in 1890, it was
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In order to deal with the nationwide industrial trust problem; the Clayton Act was passed in 1914,
The purpose is to deal with retail and wholesale activities in local markets. In this way, these ancient laws can be compared with the 21st century
Is information-based economy relevant? I will answer this question without hesitation. Antitrust law is very
Well, it is not like most contemporary laws, it is a common law clause, so it will not be limited by environment and times
system. People today may not fully understand the essence of common law, but I firmly believe that
In the field of Sri Lanka, we are fortunate to be part of a declining common law legacy. To make an analogy, the constitution comes first
The "freedom of speech and press" clause of the amendment was formulated in an era when speech and print were the only two media.
Today, we have radio, television, cable, satellite, Internet and other media, but no one
Would really think that we need a new First Amendment. In fact, the core principles of the Freedom of Speech and Press Clause
Case law has been developed over the past two centuries, and it can be effectively applied to these new media. America
The Chief Justice of the Supreme Court Charles Evans Haig once said: “As a charter of freedom, antitrust
Compared with some commendable provisions in the constitutional provisions, the Russ Act is more universal and adaptable.” Antitrust
Lars’ core principle is to stop agreements or mergers that create or increase market power, or those that use existing
Unilateral acts of market power to protect or expand monopolies. This is also the three key legal provisions actually being done
: Section 1 of the Sherman Act prohibits anti-competitive agreements, and Section 7 of the Clayton Act prohibits anti-competitive mergers and Sherman’s
Article 2 of the law prohibits the abuse of monopoly power. These terms are sufficient to cope with the contemporary economy. So-called new economic is
Many aspects are not so new to antitrust enforcement. [69]
Posner, a representative of the school of law and economics, believes that:
Sri Lanka is not suitable for the control of the "new economy." This view believes that in order to deal with competition in traditional manufacturing
The legal principles developed from the problems of disputes and monopolies are not effective in dealing with the dynamic new economy of the 21st centu
Too applicable. I think there are indeed problems in applying antitrust laws to the new economy, but that’s not a legal principle.
The problem. The antitrust legal principles are flexible enough and faithful to economic
Competitive problems in the economy. The real problem lies in the system level: the enforcement agencies and courts do not have enough
Technical means, and the action is not fast enough to effectively cope with the extremely complex economy that changes very quickly
Department. This is an extremely difficult problem to solve. [63]
Second, the negative theory. Some scholars believe that enterprises with market power in high-tech industries are allowed to use
Using market power is a meaningful price paid by the ever-changing innovation economy, giving innovators the vast majority
The return should be worthwhile. Therefore, in the new economy, the implementation of anti-monopoly law is unnecessary and counterproductive.
Productive. Some scholars believe that investment motives are very important in dynamic industries.
Anti-monopoly law will discourage innovators’ investment enthusiasm. Therefore, anti-monopoly law will not produce positive effects in the industry.
effect. A more moderate view is that due to the rapid pace of innovation in high-tech industries, the government should not intervene.
Unless it is certain that doing so will benefit consumers and economic development. [38] Especially in the representative of the new economy-software
In the industrial sector, Simonetta Vezzoso pointed out that the anti-monopoly law intervention in this area has limited effects. According to
Schumpeter’s innovation theory, the market itself has a powerful force to change the stagnant competition situation, and proposed
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In order to compete for the market (competition for market) and competition in the market (competition in
market) The difference between the two points out that the competition in the new economy industry is mainly the former. [70] There are also scholars from e
From the perspective of observing the cost of intervention and non-intervention, it is believed that the cost of anti-monopoly law intervention in the networ
Due to the loss caused by possible anti-competitive behaviors in the network economy, the anti-monopoly law should not interfere with the network econom
Moreover, once the intervention is wrong, the social cost will be great. For example, DavidJ Teece believes that innovative
In the context, the characteristics of competition, the effect of restricting competition, and the characteristics of economic rent are different. No intervention
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The (social) cost of the technology industry is not high, and compared with the errors and costs that may be caused by intervention, it is more
small. [71]
In fact, very few scholars think that the new economy does not require the intervention of anti-monopoly law at all, most of them think
The anti-monopoly law should be carefully revised in the field of the new economy to adapt to the characteristics of the new economy itself.
2.3.2.2 Viewpoints of this article
This article believes that the new economic field not only requires timely intervention by the anti-monopoly law, but also the anti-monopoly law has a
The basic principles and systems pursued are applicable to the new economy to a great extent.
First, the new economy also needs antitrust laws to maintain free competition and promote innovation. Whether in
Traditional economic industries or new economic industries, and a free and fair competitive environment is the prerequisite for the healthy development of
Mention conditions. Competition is a common social phenomenon. Social Darwinism "The law of things competes against the sky, the survival of the fittes
Not only promotes competition as a natural order faced by all species, but also promotes “striving to become strong
All the species of “zhe” have the natural competitive power. [72] Competition and monopoly are naturally opposed, but they also run through
The whole process of economic and social development. From an economic perspective, competition and monopoly are a contradictory unity. opposite
It reflects the contradictory movement in the development of productive forces under the conditions of socialized mass production and market economy. Th
After the stubbornness arises from competition, although it may suppress and exclude the competitive power, it may also promote further competition.
Expansion step by step and lead the competition to advanced. [73] In the new economy industry, competition is still of great significance, precisely because
The existence of competition encourages enterprises to innovate, which is conducive to improving the quality of next-generation products. At the same tim
Can enjoy full choice of goods. Even for existing monopoly companies, the pressure of potential competition
It is the driving force that still needs continuous innovation.
Second, the essence of anti-competitive behavior in the new economy has not changed. The antitrust law focuses on two major aspects of behavior
To: Eliminate the agreement behavior of competition between the two parties and abuse of market power to exclude competitors to obtain excess profits
Run’s unilateral act. ① In terms of the most controversial market power in the new economy, the anti-monopoly law
The basic principle of the same applies: Scholars who oppose anti-monopoly regulations believe that market dominance in the new economy
Power is not only a return to innovators, but also cannot be maintained for a long time due to the rapid innovation of the market, so there is no need to reac
Monopoly laws and regulations. In fact, the anti-monopoly law has never opposed the existence of market dominance, but opposed
① This is only from the perspective of the existing market structure. Merger behavior is of course also an important regulatory object of the anti-monopoly law, and may result in the above-mentionedThe dual anti-competitive effects of unilateral and agreement actions.
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Abuse of market dominance. Therefore, in the new economy, if monopoly is to some extent an inevitable
The economic structure does not lead to the conclusion that the anti-monopoly law cannot be applied to the new economy.
In general, from the perspective of the anti-monopoly law safeguarding free and fair competition, the new economy and the old economy are not
What is fundamentally different. In the era of the new economy, anti-competitive tactics used to protect and expand market power have followed
There is no difference to what is usually used. When technology changes, as Adam Smith said before
The nature has not changed. The anti-monopoly law’s concern tomorrow is the same as yesterday’s concern, mainly to curb
Traditional anti-competitors used by companies with market power to maintain and expand market power.
Law. As Joe Klein put it: "The unreasonable way to acquire and maintain market power is the same as Senator Sherman
There is not much difference in the age of life. They hinder competition and limit the choices of consumers.
The same as before, today, they are also unreasonable and illegal. [69]
2.3.3 Intellectual property market power and anti-monopoly regulations in the context of the new economy
2.3.3.1 Views on market share and market power in the context of the new economy
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One of the important reasons for the absence of anti-monopoly law intervention in the new economy is the dynamic competition of the new economy
And rapid innovation characteristics make cartels and market dominance in this field always temporary, and will soon be affected by the market.
Market competition is destroyed, without the intervention of anti-monopoly authorities. As some scholars point out, in the digital industry,
The higher market share of leading companies is only temporary and may be replaced by potential competitors at any time.
The incumbent leading companies cannot rely on their temporary monopoly position to increase product prices or make price discrepancies.
Therefore, a higher market share does not mean that companies have the power to influence the market. Potential competition
Threats are sufficient to deter enterprises from taking actions that are detrimental to competition, without having to use anti-monopoly policies to restrict en
behavior. Compared with the role of competition itself, anti-monopoly policies may undermine the inherent operating regulations of the software industry.
law. [74] ① Some scholars believe that one of the important characteristics of the new economy is the rapid pace of technological change and innovation. new
Competition in the economic field is mainly focused on striving to develop "the Next Big Thing" (the Next Big Thing).
The goal of the initiators of the new economy is not to pursue production efficiency as in the past, but to introduce new technologies or
Problem-solving services create a new market. Driven by this goal, technological progress has been rapid, and
And formed an extremely dynamic market. In this market, new technologies have caused costs and prices to continue to fall
While the utility has been continuously improved. Under the threat of the “next big thing”, existing companies in the market
① Scholars holding this view generally take Microsoft as an example to analyze: In the personal computer operating system market, it competes with Microsoft's Windows98The operating system also includes IBM's OS/2 operating system. If Microsoft uses its monopoly to increase product prices, then consumers will do it.To respond quickly and reasonably anticipate future price trends, reduce purchases of its products, and IBM can respond quickly and catchMarket opportunities, using its existing marketing system to expand production and increase market share at nearly zero marginal cost. Operating system marketThe situation will be changed. Therefore, in the operating system market, although Microsoft occupies an absolute advantage in terms of market share, potential competitionThreats exist, which is reflected in the open market, the existence of substitutes, and the constant updating. And for Microsoft,The more deadly threat comes from the technical development for the Windows system, including the development of Java software. If the development progresses smoothlyTherefore, the development of future application software can bypass the current operating system platform and proceed directly on the basis of Java.What type of operating system is used. Then Microsoft’s current advantage of "applicable barriers to market entry" will disappear, and its operationThe dominant position of the system will be subject to actual rather than potential threats. Therefore, although Microsoft is a software empire, it is not indestructibleYes, as long as this market is profitable, there will be realistic incentives to attract competitors to participate and find room for profit.
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They will never be satisfied with their success and always motivate them to work hard and innovate. Existing competition and future potential
At the moment of competition, it puts a lot of pressure on enterprises, so that enterprises with dominant market positions dare not engage in monopoly
Sex. In addition, the rapid changes in technology mean that market hegemony is only temporary hegemony. [67] And, Frank
H. Easterbrook pointed out in 1984 that it is easier for an economic system to correct a monopoly than to correct an error in law enforcement.
Much. Regarding the mistakes of the Supreme Court, the market cannot automatically correct it, regardless of whether a practice is beneficial or not.
If the court believes that it should be sanctioned, this view tends to continue. [75] Therefore, there is no need to counteract the new economic field.
The intervention of monopoly law.
2.3.3.2 Analysis of market power in the new economy
Generally speaking, the analysis of market power is based on the following three aspects: (1) Demand and substitution
Scope; (2) Market entry barriers and development; (3) Buyer power. [76] Based on this theoretical background, the new economy
Does Zhongguo really have no barriers to entry and enduring market power? This article believes that this is not the case. In the new classic
In the economic field, barriers to entry and market power are achieved through an interlocking economic and institutional chain.
Now, intellectual property is the most important part of it.
First, barriers to entry caused by network effects. As mentioned earlier, one of the characteristics of the new economy is the network effect.
The size of the network effect depends on the number of consumers joining the network. A company due to its first launch
Effect and obtain an absolute advantage in the product or service market, creating a network with a huge installed base
Network, has gained a great positive network externality. And consumers due to the high transfer cost or the price of the existing network
Value is expected to be high, generally he is reluctant to try a new network unless the network is technically “destructive innovation”.
New" features, such as the replacement of traditional tape recorders by CD players.
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Second, network effects and technical standards. There are several different competitors (including potentialIn the case of competitors) providing independent network installation bases, the following two types of competition may be adopted:
Strategy: (1) Compatible strategy. Companies choose strategies that are compatible with common standards and interconnect with other competitors
slightly. At this time, consumer welfare can be maximized, because consumers are in a larger network,
Increased network effects. At the same time, through standardization organizations or technology joint ventures, the same technical standards can be achiev
However, in this kind of market, it is difficult for companies to differentiate their products or services, and the motivation for technological innovation
Was weakened. (2) Incompatible strategies. Several companies believe that the high quality of their products is sufficient to make up for the consumer’s ne
Effect loss, then it is very likely to adopt an incompatible or non-interconnected policy, and the consumer lock-in effect will
Consumers are firmly locked in their own products or services, and at the same time expand the network by further expanding the installation base
effect. Generally speaking, companies that have occupied a dominant competitive position tend to adopt this strategy. And make yourself
The technical standards become the de facto standards in the industry. Therefore, no matter what competitive strategy is adopted, the technical standards ar
Eventually became a key factor in network effects.
Finally, technical standards are combined with intellectual property rights. The typical characteristics of the new economic era are the input and outpu
The industry with knowledge as the core is occupying an increasingly important position in the entire economy and is
Protected intellectual property has become the central driving force for promoting industrial progress and improving social production efficiency.
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Under the circumstances, as a ubiquitous technical standard in human social life, it is no longer possible to bypass the intellectual property rights.
The technical specifications for protection only take the achievements of public intelligence as the content. Especially in the process of generating de facto
Due to network effects and other factors, the technical solutions, methods or technologies in the products (services) of leading companies
The parameters have firmly locked the market, and latecomers have to follow this standard in order to be competitive in the market.
This standard is obviously based on the intellectual property rights of leading companies. Therefore, the standard is especially the fact
The combination of standards and intellectual property rights is the inevitable result of industrial development in the information age.
Therefore, network effects, technical standards. . . . . . . . . Together with intellectual property rights, they constitute a. . . . . . . . . . . . . . . . . . . . .The fear of entry barriers makes companies that have obtained market dominance and even market dominance fully capable of ranking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Reject other competitors (including potential competitors). . . . . . . . . . . . . . .
.
Among the three, intellectual property is the key factor.. . . . . . . . . . Because network effects and technical standards can be said to be
The objective product of economic development, and it is not a unique phenomenon of the new economy. For example, telephone as a typical network prod
Industry was born in the 19th century, and technical standards existed widely before the industrial revolution. The reason is in Xinjing
In the economic field, network effects and technical standards can have such great power, or it lies in technical standards and intellectual property.
The combination of rights, in essence, should be open, public, and public welfare technical standards are shrouded in "private
Under the wings of intellectual property rights, which is the basic position, the technical standards have become a monopoly market.
Tools for thick profits. Some scholars have commented that intellectual property law originated from practice rather than theory. It makes every creation
The owner privately owns his knowledge product (idea) and excludes the free use of the public (colonizes the public domain). standard
The combination with intellectual property rights not only failed to achieve the expected purpose, but also caused the standard setters to regard the standard
Their own intellectual property rights continue to trample on the anti-monopoly law, no wonder some people think it is a "tragedy of the public interest."[77]
2.3.3.3 The basic position of intellectual property licensing anti-monopoly regulations in the field of the new economy
Any law is a combination of generality and particularity. As the German philosopher Gadamer wrote in "Truth and
As stated in the “Methods”, “It is imperfect to adjust real life with the rules of law and morality.
Creativity requires judgment to correctly grasp and evaluate specific situations. " [78] knowledge in the field of the new economy
Property rights and anti-monopoly law. On the one hand, this article argues that the anti-monopoly laws and regulations governing the licensing of intellect
The efficiency analysis paradigm is still applied, competition, innovation efficiency and consumer welfare are still the core factors of legislation and enforc
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White. But on the other hand, in the field of the new economy, intellectual property rights have indeed quietly undergone changes, which are reflected in thMarket expansion and economic power in the market. Therefore, when implementing anti-monopoly laws and regulations, we must face strong knowledge
Intellectual property power must strike a proper balance between innovation and free market competition.
First, according to the actual situation of the new economy industry, the anti-monopoly law should be carefully applied in order to maintain the stimu
Encourage. The anti-monopoly law itself has a high degree of uncertainty, and it needs to be analyzed in combination with specific circumstances in law en
In recent years, the increase in the status of the principle of reasonableness in the enforcement of the anti-monopoly law is to some extent a violation of the
Enhancement of certainty. Therefore, this feature of the anti-monopoly law enables it to respond to different economic environments.
Adjustment. In fact, since the anti-monopoly law came into being, many principles and micro-systems have followed economic development.
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Development and corresponding development and changes. Therefore, there is no reason to believe that the anti-monopoly law
Lost this adaptability.
Indeed, under the impact of the new economy, the regulatory principles, regulatory focus, and policy objectives of the anti-monopoly law are all
Quietly changed. As Posner pointed out, the principles of antitrust law are flexible enough and truly loyal to
Economic rationality is sufficient to cope with the competitive problems that arise in the new economy. The real problem lies in the system
Face to face: The enforcement agencies and courts do not have sufficient technical means, and the actions are not fast enough to effectively deal with
An extremely complex economic sector that changes very quickly. Therefore, for the new economy industry, the enforcement of the anti-monopoly law is i
The importance is greatly improved.
With regard to the enforcement of the anti-monopoly law, on the one hand, due to the current innovation speed may affect the quality of future produc
The volume and price have a significant impact, therefore, the enforcement of the anti-monopoly law has huge potential benefits; on the other hand,
Due to the great uncertainty of the innovation path and the rapid technological change, the anti-monopoly law enforcement mistakes
The potential cost is also very high. [38] Therefore, the anti-monopoly law enforcement in the new economy should adopt a cautious attitude.
Degree, and fully consider the new facts and new problems brought about by the new economy. For those changeable and current
Emerging industries that have not yet shown a mature industry development law should not adopt excessively strict anti-monopoly regulations.
Second, the basic goal is to maintain the openness of the market and effective competition. New economy industry due to its own
Characteristics, network effects and standardization are its inevitable development trends, and bring huge scale benefits,
It is not appropriate to use the concepts and principles of market share in the traditional anti-monopoly law to regulate. Therefore, the government and judi
Policies, legislation, or justice should be adopted to make the best use of the situation to ensure consumers’ right to choose freely.
In the relevant market, a state of both economies of scale and effective competition is formed. The most modern in the knowledge economy
Take the representative communications and software industry as an example. In 2003, Sun Company sued Microsoft for deliberately preventing Sun’s Jav
In a lawsuit involving compatibility and interoperability between Taiwan and Microsoft’s Windows platform, a US court ruled in favor of Sun. verdict
Wrote: "Although Microsoft pretends to support the realization of compatibility, the company deliberately took steps to prevent this goal.
accomplish. "The verdict also ruled that Microsoft must include Java in its windows and must avoid Java in windows.
The "failure, uninstallation, replacement, or weakening of any function" of runtime. This case represents protection software
The legal tendency of standard openness. [79] In the communications industry, in order to further enhance the competitiveness of the telecommunications ma
To achieve the goal of lowering prices and improving service quality, Sweden began to implement user replacement as early as September 2001.
The operator will continue to use the original number later, that is, mobile phone numbers can flow freely between different operators.
This can prevent operators from forcibly binding users who are dissatisfied with their services by saying that users are unwilling to change their numbers.
[80] In short, ensure the openness of standards or networks, and eliminate barriers to entry due to information and intellectual property rights.
To ensure the free choice of consumers, it also guarantees the existence of effective competition. [81]
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Chapter 3 Macro Analysis of China's Intellectual Property Licensing Anti-Monopoly Laws and R
3.1 The background and current situation of China's intellectual property licensing
3.1.1 The current economic background of intellectual property licensing in China
Since the mid to late 20th century, global economic integration and the development of new economic industries can be said to have followed the nor
It describes the main trend of human social and economic development from the perspective of surroundings and nature. As a group of the international eco
In part, my country’s current market environment is certainly affected by this, especially in the field of intellectual property licensing, economic
The impact of global integration and new economic industries is the most obvious.
3.1.1.1 Global economic integration
Generally speaking, global economic integration indicates the cross-border flow of goods, services, production factors and information.
Move and change the allocation of resources on a global scale. At the same time, the economies of countries are increasingly interdependent
This kind of economic development situation and form. For global economic integration, there are pros and cons of evaluation: on the one hand,
Major countries—including major developed and developing countries—have shown an active approach to globalization.
Attitudes towards acceptance and participation. On the other hand, globalization brings about the impact on national sovereignty, national culture and differ
Erosion and other negative effects have also been paid more and more attention. For example, the World Trade Organization held in Seattle, USA in Decem
The large-scale protests that broke out during the conference showed that the anti-globalization movement is also in progress. However, the global
Economic integration is an inevitable trend of productivity growth, as the famous economist John Dunning said: "Unless
There are natural and man-made disasters, and the globalization of economic activities is irreversible. " [82] Therefore, a pragmatic approach should be, regar
Whether spheroidization is a gospel or a disaster, we should accept it positively, that is, actively share the huge economic benefits brought by it.
At the same time, try to reduce or avoid the negative effects that follow, realize the benefits and eliminate the disadvantages. For developing countries—
For China, for example, economic globalization is even more a double-edged sword, both an opportunity and a challenge.
For China, the positive effects brought about by economic globalization are as follows: First, it provides for China’s economic development.
The funds needed. Participating in the process of economic globalization, China adheres to the economic policy of opening to the outside world and increa
In order to strengthen the export-oriented import and export strategy, a large amount of funds have been obtained in world trade. On the other hand, openin
The liberalization policy has also attracted a large amount of foreign capital to flow domestically. According to the UNCTAD’s World 2000
According to the statistics of the "Investment Report", developing countries have attracted US$208 billion in foreign investment in 1999, accounting for a g
And the amount of international private capital invested in developing countries has also increased substantially. Foreign capital accounts for developing C
The proportion of the total capital flow of the country has reached 56%. Second, it has promoted the further optimization and adjustment of China’s industr
skill improved. In the process of economic globalization, developed countries have transferred labor and resource-intensive industries to developing countr
Transfer has become one of the basic ways to upgrade the industrial structure. Many developing countries are using this contract
According to the needs of domestic and international markets, continuously adjust and optimize the industrial structure and export commodity structure.
Efforts to accelerate the development of high-tech industries have become a shortcut to accelerate the country’s industrialization and modernization. at the
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The relatively advanced technology of developed countries has also prompted China's related industries to quickly achieve technological upgrading. ①
While reaping the benefits of economic globalization, China is also suffering from huge negative effects. China’s economic
Facing a huge challenge, this is prominently manifested in: the national economy’s dependence on the international
The international economic order dominated by Darfur countries is likely to have a strong conflict with the self-interests of developing countries. according
Institutional economics theory, the non-equivalent economic relationship and economic power of real economic individuals determine the economic system
It will evolve in a non-neutral and non-efficient manner, which determines the non-Pareto in the process of institutional arrangements and institutional chan
Improvement effect. That is to say, benefiting some people will inevitably cause damage to other people. Therefore, the system naturally has non-
Neutrality. The current national trade system is actually developed
The main body of controlling power) is the largest economic surplus, including the use of economic
Biased institutional arrangements made by economic power. [83] Therefore, as a developing country, China will inevitably endure this
The negative effects of this institutional arrangement.
Specifically, developed countries have used their superior positions in trade, finance, technology and other fields to establish
A set of international economic order dominated by its values and practicality, the most typical example is the world trade
The "Trade-Related Intellectual Property Agreement" organized by Yi's came into being. In terms of the natural evolution of the system, a country
The level of intellectual property protection should be compatible with the country’s economic development, cultural traditions, and historical background.
That is, a country's intellectual property system should be endogenous. However, in order to fully obtain their technological advantages, developed countrie
The resulting global excess profits have established a set of high-level intellectual property protection standards worldwide, and
Link it to trade and guarantee it through WTO's compulsory measures.
3.1.1.2 New Economy Industry
The economic trend closely related to the integration of the global economy is the industrial transformation brought about by technological progress.
It is generally called the economic phenomenon of the new economy industry. Just as the definition of the new economy in Chapter 2 of this article: the new
This is a new production method based on information technology, knowledge elements as the driving force, and the network as the basic production tool.
This change in production mode is not only limited to a certain industry or a single technology, but has realized all aspects of society.
The great development of the country, and the continuous advancement with an acceleration trend, have had a huge impact on social productivity and econ
Great role and influence, which has had a huge impact on the international social economic order and legal order, and has a strong impact on the
It affects the self-interests and related systems of countries in global integration. Specifically: First, the new economy industry
Promoted the expansion of the intellectual property system. The huge economic effect of the new economy makes people truly feel
The power of “ism” and the public product nature of knowledge makes the protection of intellectual property rights more important than ever.
Therefore, the continuous expansion of the connotation and extension of the intellectual property system is an inevitable conclusion to stimulate innovation
The development of the economic industry has shifted the focus of international trade from trade in goods to trade in technology, thus making intellectual p
The issue of protection has an international significance. The regional nature of traditional intellectual property rights makes international technology trade
① There has been a lot of discussion in the academic circles of our country as to the extent to which my country’s market-for-technology development strategy has been achieved. The basic point of view is: my country has opThe huge Chinese market has not replaced the truly advanced core technology of the international community. Instead, it has been subject to the technological control of other countries and has become a developed country.Home processing plant. It is based on this understanding that my country has proposed the establishment of an independent innovation mechanism. However, this article believes that it cannot be completely deniedRecognize the positive effect of foreign direct investment on my country’s technological progress.
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To the complex intellectual property legal dilemma, therefore, to promote the internationalization and convergence of the intellectual property legal system
Where the interests of developed countries lie.
3.1.2 The current legal background of intellectual property licensing in China
3.1.2.1 The construction of China's intellectual property system in the context of TRIPs
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Before the promulgation of China's first patent law in 1985, China's intellectual property legal system was almost blank.With the in-depth development of reform and opening up, since 1990, China has successively revised and updated copyrights, trademarks,
A series of laws and regulations related to intellectual property such as patents, trade secrets and anti-unfair competition, and started
Intellectual property protection for integrated circuits, geographical indications, plant diversity and pharmaceutical patents. In ten years
Within a period of time, China joined almost all the intellectual property agreements of the international community at that time. For example, it joined the
It joined the Madrid Agreement and the Washington Treaty in 1989, and joined the Berne Convention and the World Copyright Association in 1993.
It joined the Geneva Audiovisual Agreement in 1993 and the Patent Cooperation Agreement in 1994. At the same time, it became a national
Member of the International Patent and Trademark Classification and Microorganism Deposit Agreement. Before and after China’s accession to the WTO,
The construction of the legal system reached a climax: the patent law was revised in 2000 to make it basically in line with the requirements of the TRIPS a
As a result, a series of laws and regulations to protect the design of integrated circuits have been promulgated and implemented. Amendments were issued
The revised Trademark Law and Copyright Law, the former has made relevant
The latter provides a higher degree of copyright protection for information technologies such as networks and databases. Apart from
In terms of legislation, try to comply with the internationally accepted standards. China has also carried out a large number of
Investment to increase the punishment of intellectual property infringements, even exceeding the universal standards of the international community. ①
In just over 20 years, China’s intellectual property system grew out of nothing, and has gone through hundreds of years of experience in developed co
history. Under the impact of new economic industries and the trend of economic globalization, the establishment of China’s intellectual property system
Setting is a complicated process of internal and external affairs. As foreign scholars pointed out: "Some emerging market economies--
Such as Argentina, Brazil and China-the legal reform is a dual effect of foreign economic pressure and domestic political conditions.
Use the result. " [84]
From the analysis of internal factors, the construction of China's intellectual property system is an inevitable requirement of economic development. E
The representative school of institutional economics regards the system as an endogenous variable of economic growth, and examines the intellectual prope
It can also be carried out from the perspective of economic development needs. Analysis of Institutional Economics in the Intellectual Property System and
The most representative analysis is the conclusion of Maskus. Maskus analyzed 72 samples from 1985 to 1990
After analyzing the data of this country, the conclusion is: Before the per capita income reaches a certain level, the knowledge of these countries
The intensity of property rights protection should be maintained at a relatively low level. Therefore, in order to adapt to the level of economic development
Some countries may maintain limited actual protection effects through lower law enforcement efficiency. Maskus calculation
The model shows that when other variables remain unchanged, there is a similar "U" between the strength of intellectual property rights and the lagging GN
Type of functional relationship. If it is assumed that the government’s choice of the level of intellectual property protection at each economic stage depends
① For example, the criminal law of our country can imprison up to 7 years for copying pirated optical discs. WTO only requires customs to crack down on intellectual property rights in importsHowever, our country also stipulates that the customs shall exercise jurisdiction over intellectual property infringements in export.
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Based on the comprehensive consideration of the interests of producers and consumers, the development of corporate innovation capabilities and social
The balance of demand explains this “U”-shaped relationship: because the least developed countries do not have any capacity to invest
Input any resources for innovation, so the country does not have much intellectual property rights to be protected, while protecting policy content
It is easy to be influenced by external forces, and the level of protection is relatively random; ①When the per capita income increases, the country usually
In the early stages of industrialization, learning and imitation activities among enterprises increased. Consumers were limited by income levels.
The system prefers to buy low-priced products. The society does not have much demand for high-quality products, so the quality is inferior.
Replicas of China became popular. At this time, domestic technological proliferation and economic development were both very rapid. The main political a
All economic interests prefer lower protection; when the economic development is more mature, a country’s technological capabilities also gradually impro
Some companies have begun to engage in small, marginal innovations, and the increase in consumer income has led to economic growth.
The demand for higher-quality and differentiated products in China is also increasing, which has led to the
Protection of intellectual property rights such as trademarks and copyrights; finally, when income reaches the highest level, the company has the
R&D and innovation capabilities in the field, new products and new processes continue to appear, and the wealth of society is high-tech
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The consumption of products provides a strong demand, and at this time the level of intellectual property protection has risen sharply with economic develoThe above economic analysis can basically be regarded as an attitude towards the market-related intellectual property rights since my country’s reform
Sketch. In the past ten years, China’s economy has experienced a golden period of rapid growth. The level of economic development
And the degree of affluence have a more substantial upgrade, and established the independent innovation industrial policy, ② in this
Under this background, the improvement of the level of intellectual property protection is in line with the needs of the society for the system. Just like Chin
Tian Lipu, Director of the Bureau of Property Rights stated: The most fundamental driving force or requirement for China’s intellectual property protection
The need to build an innovative economy. [86]
Although economics demonstrates the positive relationship between intellectual property rights and economic growth, it is important for China’s inte
The rapid development of the country must not ignore the "promotional role" of the external environment. ③As mentioned above, the new economy industry
The development of international trade has shifted the focus of international trade from trade in goods to trade in technology. Therefore, the promotion of in
The internationalization and convergence of systems are in the interests of developed countries. Take the United States as an example: Technology in the U
Has always played a very important role. With the advancement of high-tech industries such as information and technology in economic development,
High, which embodies copyrights, patents, trademarks and trade secrets of new technologies, new information and human creativity
It has increasingly become an important form of its social wealth and has become the most competitive industry in the United States. According to statistic
On behalf of the United States, only 10% of its exports depend on the protection of intellectual property rights.
Lai continues to strengthen, and nearly 50% of foreign exports rely on some kind of protection of intellectual property rights. Intellectual Property in the U
China’s economic development and foreign trade are playing an increasingly important role. [87] In this context, in Uruguay
Hezhong, the United States took the lead in proposing to link intellectual property issues with trade, and after a lot of meticulous work,
① For example, because of the long history of colonization, some least developed countries had to accept the legal system of developed countries in their entirety, even if they did not have much to do with it.Actual meaning.②The American economist Mai Weide once divided the development of intellectual property into five stages: the stage of exporting basic products, the stage of exporting high-tech products,
Encountering the high cost stage of overseas intellectual property rights, the stage of huge investment in independent innovation intellectual property rights, and the stage of mutual benefit of enjoying intellectual property rightAccording to his opinion, China is currently between Phase 3 and Phase 4.③ An unfriendly explanation for this promotion is that China’s intellectual property system is under pressure from developed countries led by the United States.The product of uprooting.
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Yu made trade-related intellectual property rights listed as one of the 15 issues, and finally passed the TRIPs agreement. exist
While internationalizing intellectual property standards, the U.S. Trade Representative used its
The enhanced authorization in the special Section 301 (later evolved into Super Section 301) in the Act has also been continuously passed
Bilateral negotiations to force China to increase the level of intellectual property protection. United States Trade Representative since April 28, 1991
The office announced that India, Thailand, and China are key monitoring countries with a serious lack of adequate and effective protection of intellectual p
From home, China and the United States began a long intellectual property conflict to this day. It is undeniable that China’s intellectual property
The construction of the right system has indeed been greatly affected by the international environment. Quite a few scholars have summarized this phenom
This reflects the two characteristics of compulsory ① and exogenous ② for the changes in China’s intellectual property system , just like American scholars
Herry JHWeare said: "The fundamental motivation for China to introduce intellectual property law is from the opening-up policy.
Driven, China needs foreign trade, attract foreign investment, and obtain urgently needed technology and equipment from the West. " [88]
3.1.2.2 Disputes and formulation of the "Anti-Monopoly Law of the People's Republic of China"
Contrary to the rapid development of the intellectual property system, the legislation of China’s anti-monopoly law has gone through a long period of
The tortuous process: from the establishment of the Anti-Monopoly Law Drafting Group by the Legislative Affairs Bureau of the State Council in August
In 2007, the "Anti-Monopoly Law of the People's Republic of China" was officially promulgated, which lasted for 20 years. ③Anti- monopoly law
The slowness of legislation reflects the suspicion of the senior political and theoretical circles on the suitability of the anti-monopoly law for China. E.g,
When the Anti-Monopoly Law Drafting Group was established in 1987, it was originally planned to combine the Anti-Unfair Competition Law and the An
Law, and proposed the "Interim Bill Against Monopoly and Unfair Competition" the following year. However, the country at the time
After conducting certain investigations and studies on the domestic market by the Economic and Trade Commission and the State Administration for Indus
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The type is not prominent, and the situation of harming the social and economic order through illegal means is more serious. Therefore, "AnywayWhen the Competition Law was successfully promulgated, the anti-monopoly law was stranded.
In my country's theoretical circles, there is no consensus on whether China needs an anti-monopoly law. Shallower
The second reason is that what my country’s current economic development urgently needs is economies of scale.
The industry becomes bigger and stronger, and monopoly means large-scale enterprises. Therefore, anti-monopoly is not an option in China.
The most urgent thing is that it is not too late when our enterprises enter the economies of scale. This conclusion is a formalistic approach to anti-monopoly
① Mandatory system changes generally correspond to induced changes. Mandatory system change refers to the state as the leading force for system change to implementSystem changes.② External system changes generally correspond to internal system changes. Refers to the backward legal system caused by the impact of the more advanced legal systemThe progress of the transformation process is generally accompanied by a large number of legal transplants.③ Of course, since the reform and opening up, my country has successively promulgated a number of normative legal documents regulating the order of fair and free competition in the market.The higher ones are: In 1980, the "Interim Regulations on the Development and Protection of Socialist Competition" promulgated by the State Council became China's protection of market competition.The earliest administrative regulations. With regard to combating local protectionism, in November 1990, the "Regarding Breaking the Inter-regionalNotification of Commodity Circulation. The Anti-Unfair Competition Law promulgated in September 1993 and the Price Law promulgated in December 1997 began to involve anti-unfair competition laws.Monopoly terms. On December 24, 1993, the State Administration for Industry and Commerce issued the "Provisions on Prohibition of Restriction of Competition by Public Enterprises".The specific targets of “public enterprises” include water supply, power supply, heating, gas supply, postal services, telecommunications, finance, insurance, transportation and other industries.In 1994 and 1996, the former Ministry of Foreign Trade and Economic Cooperation promulgated the "Regulations on Response to Anti-dumping Cases of Chinese Exported Products in Foreign Countries",The Interim Regulations on Export Acts regulate the dumping of domestic and foreign enterprises. The "Bidding and Bidding Law" passed in August 1999 hasThe monopolistic behavior of the market was regulated. In 2001, the “Decision on Rectifying and Regulating the Market Economic Order” was issued to deal with the abuse of administrative power to restrict competition.In order to make prohibitive provisions. At the beginning of 2004, the “Interim Regulations on Restricting Price Monopoly Behaviors” was promulgated, prohibiting the agreement, resolution or agreement between operators.Collusion methods such as the coordination of makers to manipulate market prices, as well as reliance on market superiority for profiteering, price dumping and price discrimination.
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Contrary to scale economies, economic benefits, etc., misunderstanding that anti-monopoly is an opposition to all monopoly states and behaviors.
Some scholars have suggested that the promulgation and enforcement of the anti-monopoly law will affect my country’s current "Price Law" and
When the enforcement of the Competition Law is too big, the enactment of this law should be delayed. [89] As academia against ridges
The research on ruling and its economic logic is increasing. This kind of simple interpretation of anti-monopoly law is not worth mentioning.
And increasingly eliminated.
The deeper reason comes from the academic community’s legal philosophy of anti-monopoly law and the self-consistent nature of economic law in o
think. Professor Deng Zhenglai criticized that Chinese law is dominated by the "Western modernity paradigm" and has been "looking to the West.
Seek the support of experience and knowledge" and use the Western paradigm to "define and evaluate China’s current situation, construct and plan China
The modernization goal of development and the way to achieve it". [90] This seems to be reflected in the transplantation of anti-monopoly law.
The most prominent. The anti-monopoly law is hailed as the "economic constitution."
“Signboard advertising” must be mentioned. However, some scholars in my country have pointed out that the Western anti-monopoly law is a
The government’s intervention in the economy in the event of market failure, and the situation facing our country is that the development of the market eco
Perfect, the free competition market is far from being formed, and it is still the baby in the “baby” under government control, and the developed market sho
The various shortcomings of China are far from becoming a real social problem. Therefore, the state is required to intervene in the market and make up for
The voice of the market is very weak, but it is necessary to clarify the autonomous rights of market entities through economic law and civil law, and go furt
Open the market and cultivate the market. [91] The reality in China is not that market failure occurs after the market is fully developed, but that there is no m
The market and the market are underdeveloped; the main task of the government at the moment is not to intervene in the market and replace it with its "vis
The "invisible hand" of the market plays a role, but it is necessary to fully cultivate the market and improve the free regulation mechanism of the market;
Chinese enterprises are not too large and too strong in monopoly power, but generally lack of scale and lack of international competitiveness;
The freedom enjoyed is not so much that it can be abused, but the freedom enjoyed is too little; for the government, it is urgent
It is not that it needs to be authorized by legislation to intervene in the market and strengthen the power to supervise the market, but it should be done.
All measures should limit the expansion of government power and reduce the opportunity for the government to intervene in the market; it is not that mark
To provide public products in common areas, the state needs to invest and participate in it, but the state monopolizes almost everything
Business opportunities in the public domain enjoy monopoly profits exclusively. In short, the real problem in the discourse of Western economic law lies in
In reality, they have become "pseudo-academic". Researchers are always consciously or unconsciously influenced by the Western economic law paradigm.
"Dominate and unquestionably transform the institutional arrangements of Western society into a'legal ideal picture' for introduction
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And believe in, and then obscure or even distort the real social structure of China or the real problems of China". [91] "……No
Few studies have presupposed the monopoly problem in Western society as a "realistic problem in China" and exaggerated the "Anti-Monopoly Law" too m
Regarding the practical significance and role of China, this article is worried that this kind of "exaggeration" is likely to cause the "Anti-Monopoly Law"
It has become another "face-saving project" in the field of economic law. [91]①
Under the background that my country’s anti-monopoly law has been promulgated, it seems that the practical significance of discussing the reasons f
Big. However, this article believes that it is precisely this kind of objection that is of great significance to the application of my country’s anti-monopoly law
① The above quotations are derived from Professor Chen Yunliang’s "Transitional Economic Law: The Choice between Western Paradigms and China’s Reality", but it is worth noting thatIn this article, the author does not deny the positive significance of enacting an anti-monopoly law system in China, but merely points out that the application of the anti-monopoly law in China cannot be completed.All copy the mainstream theories of Western countries.
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Big, borrowing from the viewpoint of the economics circle: "'ism' can be used,'problems' must be native, and theories should be self-reliant." [92]
3.1.2.3 Other legal background
At present, in addition to the intellectual property system and the "Anti-Monopoly Law" that has not yet entered into force, there are
Other laws involved include:
Article 329 of the Contract Law stipulates that “Illegal monopoly of technology, obstruction of technological progress or infringement of others’ tech
The result’s technical contract is invalid. "Article 334 stipulates, "The technology transfer contract may stipulate that the transferor and the transferee
The scope of the exploitation of patents or the use of technological secrets, but shall not restrict technological competition and technological development.
This article, from the perspective of contract effectiveness, clarifies that technology contracts that illegally monopolize technology and hinder technologica
It is clear that the technology transfer contract shall not restrict technological competition and technological development, otherwise it will be the conseque
From the perspective of the clause expression itself, it is obvious that it is rather vague, the semantics are not definite enough, the operability is still lacking
In fact, the final result is only the consequence of the invalidity of the contract, and it is impossible to fundamentally stop it.
Article 43 of the "Regulations on the Implementation of the Law on Chinese-Foreign Equity Joint Ventures" stipulates that technology transfer in fore
In the agreement, “except as otherwise agreed by both parties, the technology exporter shall not restrict the place where the technology importer can export
Area, quantity and price; ……After the expiration of the technology transfer agreement, the technology importer has the right to continue to use the techno
Technology; …The technology importer has the right to purchase the required machinery, equipment, parts and components from the sources it deems appr
Raw materials; must not contain unreasonable restrictive clauses prohibited by Chinese laws and regulations. "This one
Regulations, from the perspective of foreign investment, stipulate that technology is often used as a
When the company is licensed to use technology, there must be no price discrimination or quantity discrimination, that is, no other unreasonable restriction
behavior.
Article 30 of the “Foreign Trade Law” stipulates that “the holder of intellectual property rights has
The validity of Tongzhong’s intellectual property rights is questioned, a compulsory package license is issued, and it is stipulated in the license contract
The State Council’s foreign trade
The competent department may take necessary measures to eliminate the hazards. "
Article 29 of the “Regulations on the Administration of Technology Import and Export Contracts” stipulates that “in a technology import contract, no
Contains the following restrictive clauses: (1) The transferee is required to accept additional conditions that are not indispensable for technology import,
Including the purchase of non-essential technology, raw materials, products, equipment or services; (2) requiring the transferee to be a specialist
The validity period of the rights has expired or the patent rights have been declared invalid to pay royalties or bear related obligations;
(3) Restricting the transferee from improving the technology provided by the transferor or restricting the transferee from using the improved technology; (4
Restrict the transferee from obtaining technology similar to or competing with the technology provided by the transferor from other sources.
(5) Unreasonably restrict the transferee’s channels for purchasing raw materials, parts, products or equipment, or
Source; (6) Unreasonably restrict the production quantity, variety or sales price of the assignee’s products; (7)
Unreasonably restrict the transferee’s export channels for using imported technology to produce products. "The above-mentioned provisions shall be
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From the perspective of international trade and technology import, it is required that there should be no illegal cooperation through intellectual property moSelling, obstructing effective competition, unreasonable price discrimination, etc.
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Article 12 of the “Anti-Unfair Competition Law” stipulates that “business operators shall not violate the purchaser’s
Willing to tie-in goods or attach other unreasonable conditions. "Article 15 stipulates, "Tenderers shall not collude
Bidding, raise or lower the bid price. "These two provisions do not explicitly state that they restrict intellectual property rights.
However, Tongshuo believes that these are two important anti-monopoly provisions in China’s current legal environment.
Based on the above content, it can be seen that in the current legal environment, the competition in the licensing of intellectual property rights
In disputes, my country’s laws have a certain level of regulation. But in these regulatory systems, the problems are:
First, the legal provisions are fragmented, lack of systematic regulations, and poor operability. This can also explain why the law
The legal provisions exist, but there is still nothing to do if something goes wrong. Second, regulate from different angles, and finally
The result can only be that there can be legal consequences in this area, but beyond this field, the law is helpless
what. Judging from the above regulations, the more powerful ones are from the perspective of international trade order and the perspective of foreign inves
Spend. However, in the current practice in China, a serious problem is that after foreign companies invest in China, they become
Chinese enterprises, Chinese legal persons, take advantage of the monopoly of intellectual property rights, abuse intellectual property rights, and cannibaliz
There is a market in China, and Chinese national enterprises have failed step by step in the face of this, and the law can do nothing about it, because here
It will not involve any issues of international trade and foreign investment. Third, there is no unified regulatory agency and law enforcement agency.
Structure. Due to the different legal systems, there are many politicians, and if there are problems, who is responsible, the law does not have a definite answ
Case, and there is no corresponding review mechanism and sanctions.
3.1.3 The current status of intellectual property licensing in my country and its challenges to related legislation
Under the aforementioned economic and legal backgrounds, my country is currently showing two novelties in the field of intellectual property licensi
Ming’s characteristics: On the one hand, under the trend of economic globalization, multinational companies have
Add restrictive clauses to gain monopoly status and grab excess profits. Due to the absence of the Anti-Monopoly Law, I
The national practice and academic circles intuitively blamed it on the expansion of the intellectual property system. ①On the other hand, our country is indepen
The innovative industrial mechanism is still in its infancy and initial stage of development, and it needs to be effective for the interests of intellectual prope
Incentives include guaranteeing the full realization of its interests with market-valued intellectual property rights through a wide range of licensing activitie
3.1.3.1 Intellectual Property Strategy of Multinational Companies in China
With the trend of global economic integration and the deepening of my country’s reform and opening
The national market is an inevitable result. Since the 1990s, the rapid development of new economic industries has made multinational companies
More and more attention is paid to controlling the market through advanced technology, which is generally referred to as an intellectual property strategy.
Due to the regional characteristics of intellectual property rights, the first step of the intellectual property strategy of multinational companies in Chin
Be the first to apply for and obtain a large number of invention patents. After obtaining intellectual property protection for a large number of key technolog
Multinational companies can obtain large amounts of profits through licensing or transfer, or through intellectual property litigation and other parties.
The style retains the market to itself and maintains its monopoly. Summarize the intellectual property activities of multinational companies in China in rece
① The more representative articles are: Wang Dingding's "Intellectual Property, Monopoly Profits, Anti-Winning Profits Act", Fang Xingdong's "Get Up-Challenge Microsoft Domination"Right, Wang Xiaodong's "Piracy Justified", etc.
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(Including licensing and litigation), roughly showing the following characteristics: First, combining intellectual property with technical standards
combine. In recent years, in the international market competition, multinational companies have combined technical standards and intellectual property righ
Protection of related intellectual property rights; with the help of intellectual property rights, the monopoly of de facto technical standards can be realized.
Issue a joint license statement, such as the well-known DVD case. Multinational companies are not only in China’s domestic market
To obtain monopoly status through its intellectual property strategy, and to compete with Chinese domestic enterprises in the global competition.
In this way, use intellectual property as a tool to squeeze out opponents. For example, the cause of Cisco’s v. Huawei can be traced back to 2001.
The fuse was that in 2002, in the router project of Telecom Brazil, Huawei defeated Cisco and won the bid in one fell swoop.
The American market poses a greater threat to Cisco's monopoly. [93]
3.1.3.2 China's independent intellectual property rights and innovation strategy
As early as August 2002, the "People’s Daily" published an article titled "Out of the Black Hole by Strength", pointing out that technology
Technological black hole refers to the lack of independent research and development capabilities of technology in developing countries, resulting in the dev
Developed countries rely heavily on imports for core hardware, system software, and equipment, which are
Home technology takes the lead, and you can always only follow the old path of repeating the purchase of other people's technology. [94] May 24, 2006
At the 9th International Forum on the Development of China's High-tech Enterprises at the 9th China Science and Technology Expo, the then Vice Chairm
Cheng Siwei said in his speech: "I want to use these few figures to illustrate the problem: First, our current technological dependence
The degree is more than 50%, which means that more than half of the technology is imported; the second is that we now truly have independent knowledge
There are only about three ten thousandths of enterprises in the country with property rights. " [95] According to data published on the website of the Ministry
From 2005 to 2005, my country’s imports of high-tech products increased year by year: Taking the computer and communication technology fields as an ex
Imports in 2002 were 28.969 billion U.S. dollars, in 2003 it was 40.306 billion U.S. dollars, and in 2004 it was 507.2
One hundred million U.S. dollars. The above events and data show that, on the one hand, technology has become a key factor or even a decisive factor in e
Sexual factors. On the other hand, due to the continuous improvement of the international
If you blindly rely on importing and imitating foreign advanced technology, it is very easy to cause technological dependence. So, under construction
China’s technological innovation system and the possession of independent intellectual property rights are a necessary prerequisite for China to participate
Based on the above understanding, during the “Two Sessions” in 2006, China proposed a knowledge innovation strategy, and the State Council
The main innovation strategy office is responsible for establishing an independent innovation strategy system.
The implementation of the national strategy of independent intellectual property rights and innovation not only requires a complete intellectual prope
Incentive mechanism, in view of the actual situation in our country, it is more urgent to establish a market mechanism that promotes innovation. ① WTO
The Agreement on Trade-Related Aspects of Intellectual Property Rights shows that what is important in an intellectual property strategy is not that of inte
① my country’s current problems in the field of intellectual property rights are: attach importance to the acceptance of scientific research results and the publication of papers, while ignoring patent-based knowledgeThe application and implementation of property rights have led to the lack of original and innovative independent intellectual property rights. For example: In 2005, large state-owned enterprises directly under the central goveThe current profit is 641.3 billion yuan, more than 70% of the national state-owned enterprise profits. But these companies only applied for more than 2,200 patents in 2005. With thisIn sharp contrast, Huawei alone has applied for more than 4,000 patents. In the United States, the top ten patent applications accounted forMore than 10% of the total patent amount. In 2005, there were 170,000 domestic patent applications, 46% of which came from foreign companies’ applications, and the remainingOf the 54% of the total, 1/3 are individual applications, another 1/3 are foreign-funded enterprises, and only 1/3 are state-owned enterprises, scientific research institutions, colleges and universities,Private enterprise application. Source: Shang Silin, Anti-Monopoly Law: China's Big Stick to Meet the Pressure of Intellectual Property Protection, Business Weekly, 2006, 5,Page 50.
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Technical content, but the market application prospects and benefits of these innovations. Since the 1980s in China,
The government has formulated various plans to promote the progress of science and technology and encourage the transformation of technological innova
However, statistics from relevant data show that the realization of this goal is not optimistic. The relevant research institutions pointed out that
China can obtain about 30,000 scientific research results each year, of which only 20% are transformed.
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Only 5% of them are now industrialized and have formed certain benefits. [96] The basic research and the preliminary research of commercial competition shThe transformation of results into original and innovative intellectual property rights is the key to the formulation and implementation of my country's intel
Where. Must fully rely on market forces and give full play to the subjective initiative of enterprises to promote the implementation of intellectual property
It is not only manifested in finding market opportunities for independent intellectual property rights, but also in creating a
The innovation of market mechanism that is transformed into profit requires the government to play a role in maintaining the order of market competition.
Establish a positive and relaxed intellectual property licensing environment to fully realize the market profits of intellectual property owners.
3.1.3.3 Challenges brought by anti-monopoly laws and regulations on intellectual property licensing
From the aforementioned background and status quo, it can be known that my country’s current intellectual property licensing presents a distinct pha
Features: As a technology importing country, licensors from developed countries often rely on their technology
The dominant position already occupied in the relevant market, gains a strong position, and stipulates various restrictions in the technology license agreeme
In order to obtain huge profits and maintain its dominant position (the latter goal is often more important).
Therefore, unlike developed countries such as Europe and the United States, the legal regulation of intellectual property licensing in my country not only in
The basic principles of the intellectual property system and the anti-monopoly law are also a question of justice in the international political and economic
Questions concerning the rights and obligations of developed and developing countries in international law in technology transfer and economic growth.
Service. On the one hand, my country must fully respect the rationality of the intellectual property system and the provisions of relevant international treati
Implement a strong level of intellectual property protection. On the other hand, as a developing country, my country can also
Flexible and effective protection of national interests under the framework. Specifically, how to effectively regulate licensors in developed countries
Relying on intellectual property rights to combat the growth and competitiveness of Chinese enterprises in the domestic and international markets is the
The main practical problems of current intellectual property licensing laws and regulations. The solution of this problem, of course, can be
To set up a balance mechanism based on the public interest within the intellectual property system, but the intellectual property legal system does
As a component of the private law system, it also shows that it cannot stand at the height of the whole society to coordinate intellectual property monopoly
Regulations. As a right, just as any right has the potential to be abused, so does intellectual property rights.
It can be used as a means to restrict or destroy social competition, and the most important mechanism of the market economy is the competition mechanism
Once the competition mechanism is distorted, the market will not function normally, and the market order and market structure will suffer.
destroy. As a civil right, the intellectual property legal system must of course restrict intellectual property monopoly.
But it is mainly based on the basic principles of good faith, no abuse of rights, and public order and good customs. also
It is the fair use in copyright law, statutory license, compulsory license in patent law, and the prior user’s
First use right, and the principle of exhaustion of rights, etc. However, as a private law, it obviously cannot
Enterprises, especially multinational companies, use intellectual property as a means of expansion to take measures. Intellectual Property Legal System
The body does not have the function of maintaining fair competition, and it cannot stand to maintain and promote fairness in transactions in order to achiev
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To comprehensively examine the monopoly of intellectual property rights based on the height of effective competition, so based on the current knowledge
In the reality of property rights licensing, it is imperative to implement anti-monopoly laws and regulations from the outside.
The anti-monopoly laws and regulations on the licensing of intellectual property rights have just come into force in my country’s Anti-Monopoly Law
When the legal practice is almost blank, it seems an inevitable choice to learn from the mature foreign legislative experience. Of other mountains
Stone can be used for jade, but if it is not based on the actual situation in China, it is necessary to formulate a normative
Legal documents may cause an embarrassing situation where oranges are overwhelming. Therefore, China’s current intellectual property licensing
The anti-monopoly laws and regulations should not only follow the general laws of theories and the development trend of the international society, but also
The current practical problems in China will be analyzed from this standpoint below.
3.2 The basic value and the basic value of China’s intellectual property licensing anti-monopoly laws and regulations under Target system
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3.2.1 TRIPs and China's anti-monopoly laws and regulations for intellectual property licensingTRIPs, from their background, are developed countries’ efforts to establish an international economic order beneficial to themselves.
The international intellectual property protection standards established by developing countries can be said to be unbalanced
Obtain any substantial development benefits. [97] In order to balance interests, TRIPs also proposed the protection of intellectual property rights and
Implementation "should help promote technological innovation and technology transfer and dissemination, so that creators and users of technological know
Mutual benefit and contribute to the growth of social and economic welfare and the balance of rights and obligations". Under this purpose,
TRIPs stipulate restrictive measures against abuse of intellectual property rights in a number of articles, of which the clearer one is the
Article 8 (2): In order to prevent the abuse of intellectual property rights by the right owner, and prevent unreasonable restrictions on trade or countermeasu
In order to affect the implementation of the international transfer of technology, appropriate measures can be taken, provided that these measures
The implementation is consistent with the provisions of this agreement. Article 40: (1) The contracting parties agree that certain intellectual property-relate
Licensing acts or licensing conditions that restrict competition may have an opposite effect on trade and may hinder technology
Transfer and dissemination. (2) Nothing in this agreement shall prevent the contracting parties from regulating in their domestic legislation
It is determined that under certain circumstances, it may constitute an abuse of intellectual property rights, so as to
Opposite licensing actions or licensing conditions. As specified above, the spinning contractor may
Under the prerequisites of consistent with other provisions of the Party, in accordance with the relevant laws and rules of the Contracting Party, appropriate
Measures to prevent or control such behaviors, such as exclusive counter-delegation conditions, prohibition of objections to validity
Conditions and compulsory license packages, etc. In addition, Article 31 (K) ① , Article 66 ② , 67
① other rights of use has not been consent of the owner if a legal permission for a party in the case has not been right owner consent
For other uses of the substantive content of the patent, including government requisition or use by a third party authorized by the government, the following provisions shall be complied with: (k) IfIf such use is used to implement one patent ("second patent"), and such implementation would infringe another patent ("first patent"), you shouldThe following conditions are met: (I) The invention claimed in the claims of the second patent and the invention claimed in the claims of the first patentCompared with important technological progress that should have considerable economic value; (Ⅱ) The patentee of the first patent should have the right to use it under reasonable conditionsCross-licensing of the inventions claimed by the second patent; (Ⅲ) The permitted use of the first patent is except for those assigned together with the second patentUnder circumstances will not be transferable.② Least Developed Countries Parties 1. Taking into account the special needs and requirements of the least developed countries, their urgent economic, financial and administrative management
And the flexibility they need to establish a viable technical foundation, except for Articles 3, 4, and 5 of this agreement, they will not be required to
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Article ① also contains related content. It can be seen from the content of the above agreement that because TRIPs have changed previous knowledge
The international convention on property rights has shifted from a negative obligation to a positive obligation, that is, it directly stipulates that the member
The scope and extent of intellectual property rights protection. Therefore, for the possible negative effects of intellectual property rights,
TRIPs have also made more straightforward provisions. [98] However, it is generally believed that the provisions of the above clauses are authoritative.
It is not obligatory and compulsory. [99] Therefore, as a member of TRIPs, China should
Actively use the profit space that may be formed by the above clauses to maximize the protection of national interests
Protect:
First, use the anti-monopoly law to regulate the harm and negative effects of intellectual property rights on competition. TRIPs
The agreement is relatively heavily influenced by the European Union and the United States. Whether it’s the guiding ideology or the use of key terms, or
Intellectual property licensing activities that restrict competition by the legislative style will more directly interact with the anti-monopoly of various countr
The second is that the TRIPs agreement defines the anti-monopoly laws and regulations on intellectual property rights as the domestic legislation of each c
Within the scope of matters, countries are allowed to regulate restrictive clauses in the form of laws or regulations, restrict
Or control various practices or conditions that abuse intellectual property rights; third, the TRIPs agreement clarifies the exclusive grant-back clause
The three situations of payment, challenge clauses, and compulsory package licenses are behaviors that obviously have a negative effect on competition.
It should be included in the regulatory objects. At the same time, the above three items are only a list, and are exhaustive of all activities that endanger com
Therefore, countries can stipulate other types of regulatory actions by themselves. Third, as a developing country, China should fully
Take advantage of the preferential treatment of developing countries in the TRIPs agreement to strive for as many benefits as possible in the international t
space. Fourth, we should pay attention to international cooperation with other countries in intellectual property anti-monopoly laws and regulations.
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Safeguard its own sovereignty and national interests in anti-monopoly law enforcement and judicial aspects. Article 40 of the TRIPs AgreementParagraph 3 stipulates that if any member has reason to believe that the intellectual property rights
Someone is engaged in activities that violate the previous member’s laws and regulations related to the content of this section, and the former member hope
Damage any lawful activity, nor hinder the full freedom of all parties’
For compliance with internal regulations, the latter member shall negotiate with the former member according to the requirements of the former member. W
Law, and reach a mutually satisfactory agreement so that the members who are required to negotiate will be
The members of the business organization shall give full and sincere consideration to the negotiation, provide suitable opportunities, and provide
Publicly available non-secret information related to the negotiated issue, and other information available to the member,
To show cooperation. Section 4 provides that if a national or resident of one member is accused of violating another member’s involvement in this section
The content of the law and regulations, and therefore is sued in the territory of another member, the former member shall comply with the provisions of par
Under the same conditions, according to the requirements of the latter member, an opportunity to negotiate with it is provided. The content of these terms h
The provisions of this agreement shall be implemented within 10 years from the date of implementation of this agreement as defined in paragraph 1 of Article 65. According to a proposal by a least developed countryFor requests with justified reasons, the Board of Directors shall approve this grace period. 2. In order to enable the least developed country Parties to establish goodThe technological basis for survival, developed countries should take measures to encourage and facilitate the transmission of enterprises and research institutions within their borders to the least developed country contracting technology.①Technical cooperation In order to promote the implementation of this agreement, upon request or in accordance with the conditions agreed by both parties, developed countries shall provide
Technical and financial cooperation between countries and least developed country parties. Such cooperation should include assistance in relevant domestic protection and implementation of intellectual property rights.Rights and legislation to prevent the abuse of intellectual property rights should also include assistance in the establishment or improvement of domestic institutions and departments, as well as personnel’sTraining.
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Member countries interfere with the judicial possibility of other countries in order to protect the interests of their own nationals. Therefore, in the formulati
When making regulations, it is necessary to take into account the general principles and trends of the international community in the field of intellectual pro
In addition, as a member of WTO, the basic principle of WTO is the principle of non-discrimination (including national treatment and
Most-favored-nation treatment), the principle of transparency, the principle of free trade, the principle of fair competition and the principle of procedural ju
And so on, China must also take care not to violate the aforementioned principles in the relevant intellectual property licensing and anti-monopoly laws and
For example, the principle of non-discrimination requires that various market players at home and abroad are treated equally, and certain entities cannot be
Special discrimination or preferential treatment. Therefore, although my country does exist in the current intellectual property licensing
The reality of the strong position of licensors, Japan’s adoption of the Antitrust Guidelines for International License Agreements in 1968
The reporting and review system that strictly controls foreign licensors is no longer suitable for the current China, and the same must be implemented.
1. Regulatory policies and systems. Therefore, when my country is enacting relevant legislation, it must affirm that intellectual property licensing promotes
The enthusiasm to innovate and improve the overall efficiency of the society, while paying attention to the protection of national interests and the
The interests of the two countries have achieved a delicate balance between the two.
3.2.2 The basic value of China's intellectual property licensing anti-monopoly laws and regulations
Since the Chicago School gradually stepped onto the stage of history, efficiency has gradually become the focus of American antitrust law.
Heart. At present, many scholars in our country advocate that competition should be changed as the basic value orientation of the anti-monopoly law.
Replaced by efficiency. ① This article does not oppose efficiency as an important value or even a core price of China’s anti-monopoly law.
However, in my country’s current specific circumstances, competition as the basic value of the anti-monopoly law is neglected.
To the negative, this article considers it undesirable. In the topic of this paper-anti-monopoly regulations for intellectual property licensing
In the specific areas of the system, competition as a basic value is particularly important.
Maintaining competition is of great significance to the Chinese market, especially in relation to intellectual property licensing
Knowledge economy industry. Competition and monopoly have always been the central words of the anti-monopoly law. It can be said that the entire anti-m
The history of development is to find the golden ratio between competition and monopoly. Although in the current western countries, whether it is
The theoretical circle is still in the legislative and judicial practice. Monopoly has long been freed from the Adam Smith era. "Monopoly is evil."
The simple reasoning of the company even believes that the trend of industrial concentration is inevitable and can improve core competitiveness.
[100] However, this article believes that in China, more resources should be used to cultivate a competitive market environment. Our country should
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Former anti-monopoly law theorists emphasized efficiency as the ultimate goal of anti-monopoly law, and ignored it to a certain extent.
In order to understand the importance of competition as a basic means, instead of using the principles of Western economics to analyze the impact of mono
The positive effect of This article disagrees with this research tendency. As mentioned earlier, doctrine can be used,
But the problem has to be "indigenous". The economic analysis of monopoly in Western economics is a monopoly after the period of fully free competition
To put it simply, it is an economic monopoly created by free competition. In China’s current monopoly, apart from administrative monopoly
Beyond the break, most of the economic monopolies formed in China by multinational companies. Especially in relation to intellectual property licensing
This is especially true for the monopoly of closely related high-tech industries.
① More influential people such as Sheng Jiemin and Ye Weiping, The Reconstruction of Anti-monopoly Law Value Theory, Modern Law Science, No. 1, 2005; Hu Jiaqing, Anti-monopolyThe Economic Logic of Law, Xiamen University Press, 2007 edition, etc.
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We can illustrate by the following data:
Figure 1 is the distribution of the added value of high-tech industries according to ownership types: my country's high-tech industrial enterprises in 20
The total number is 19,161, of which the number of state-owned enterprises has continued to decline, totaling 1,960, continuing the "Tenth Five-Year Plan"
The number of foreign-funded enterprises has increased significantly compared with last year, totaling 6,999 enterprises, which is higher than that of 2005.
An increase of 508 in the year; the largest number of other types of domestic enterprises, accounting for 53.2% of the total number of high-tech industry en
At the same time, according to Xinhua News Agency, the number of invention patent applications in my country has ranked fourth in the world. How
Nearly half of the invention patent applications come from abroad, in the high-tech fields such as mobile communications and radio transmission.
The proportion of invention patent applications from abroad is as high as 90%. In 2005, the number of invention patent applications in my country
The amount reached 173327, of which 93485 were domestic invention patents, accounting for 54%; 79,842 were foreign applications,
Accounted for 46%. Statistics from the State Intellectual Property Office even show: my country’s domestic invention patent applications
It is clear that there is still a big gap in the quality of the application. Based on the analysis of the areas where the two patent applications are concentrated,
The areas where patent applications account for the highest proportion of my country’s similar invention patent applications are traditional Chinese medicin
Product, Chinese input method and other fields. However, the invention patents applied by foreign countries in my country are mainly concentrated in high
area. [101]
Judging from the above data on the industrial output value of foreign capital in China and patent applications, foreign capital as a whole,
Has occupied a monopoly position in certain industries, especially in the electronic communication equipment manufacturing, instrumentation, cultural
The performance of teaching sports goods manufacturing, etc. seems to be more obvious.
In addition, in some industries, monopoly by a single multinational company has emerged. According to the State Administration for Industry and Co
An investigation by the Anti-Monopoly Law Division of the Peace Exchange Bureau found that: US Microsoft Corporation occupies 95% of China's comp
Tetra Pak of Sweden occupies 95% of China's flexible packaging market; Cisco of the United States occupies China's network hubs and routers
60% of the sensor market; Kodak accounts for more than 50% of China’s photosensitive material market. [102]
Another data that can explain the problem is: my country’s current technology trade in the high-tech industry has become an integral part of the
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An unquestioned subject of technology trade: In 2007, in the national technology market transaction contracts, technical secrets were involvedConfidentiality, computer software, patents, integrated circuits, biomedicine, new species of animals and plants, etc.
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There are a total of 109,740 technical contracts, accounting for 49.7% of the total number of transactions in the country; the transaction amount is 147.7 bil
An increase of 23.5% last year, accounting for 66.4% of the country’s total turnover. Among them, technical secrets and computer software copyrights
The turnover of technology transactions ranks first and second. 76,261 technical secret contracts were concluded, with a transaction value of RMB 100.8 b
An increase of 29.2% over the previous year; 27,617 computer software copyright contracts, with a transaction value of 25.5 billion yuan, were higher than
An annual increase of 15.4%. [103]
In this realistic environment, if we blindly copy the current Western countries’
Recognition, emphasizing the rationality of industry concentration in the new economy industry and the improvement of social welfare, its actual effect
It can only be that multinational companies use their dominant position to grab a large amount of industry profits in the Chinese market, and a large numbe
Yu must also be transferred to the monopolist. The more serious consequence is that technology has become a country’s core competition
Under the powerful international environment, if there are too many industries involved in a transnational monopoly, or the monopolistic industry has a stra
If a technology monopoly is formed, the host country’s economy will lose its independence and affect the country’s economic security.
Therefore, in the anti-monopoly regulation of intellectual property licensing, although monopoly is positive for technological innovation
Significance is a consideration. However, legislation and law enforcement should pay more attention to the impact of certain licensing actions on market co
The effect of competition is based on ensuring the existence of competition as the primary prerequisite and basic value. This article argues that Judge Posne
Arguments based on efficiency and competition may be the most appropriate
Related fields-the status quo: "Efficiency is the ultimate goal of antitrust law, competition is only an intermediate goal,
It's just that this goal is often close enough to the ultimate goal so that the court does not have to look further. " [36] Although this is
His remarks when demonstrating efficiency as the ultimate goal of the anti-monopoly law did not prevent us from proceeding
Another interpretation: As a starter on the anti-monopoly road, perhaps the first thing we need to see is competition
This basic goal.
3.2.3 The target system of China's intellectual property licensing anti-monopoly laws and regulations
3.2.3.1 Maintain an open and fair playing field
This article believes that maintaining an open and fair competition environment is China’s anti-monopoly on domestic intellectual property licensing.
The primary goal of the legal system. Economic law emphasizes social fairness and substantive fairness, and seeks social stability
And development, the pursuit is the realization of the overall interests of society. As an important legal department of economic law, the anti-monopoly law
Of course, this view of fairness should also be reflected. In the regulation of the anti-monopoly law on the licensing of intellectual property rights, fairness
It has a unique meaning and significance as one of the measurement standards. From a specific level, the intellectual property licensing
Fairness means fairness between the licensor and the licensee, including formal fairness and substantial fairness. Excellent in abuse
In the permitting behavior of the dominant position, the legitimacy of regulation is based on the inequality of the status of the two parties, which may lead t
The resulting result is unfair, and the unfair result will in turn strengthen the licensor’s dominant position, leading to the next
An unfair licensing act. For example, a unilateral and exclusive grant-back clause means that the licensor can
All improvements and innovations related to the licensed technology are collected in the bag, always holding the technological leadership, and constantly
The innovation motivation of the licensee is reduced, and the innovation incentive of the licensor itself is also reduced. From a macro perspective,
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The fairness of intellectual property licensing is embodied in the balance between the intellectual property owner's own interests and the overall interests of
That is to say, intellectual property rights are private rights, and the public welfare nature of the intellectual property system has been recognized.
When the right holder’s licensing behavior is regulated, the regulatory behavior targeting the overall interests of the society has anti-monopoly laws and kn
The common basis of property law.
An open competitive environment is another manifestation of fairness. In intellectual property licensing, due to intellectual property
The private rights of rights and the continuity of knowledge itself, the innovation of a certain technology is likely to involve the knowledge that others have
The related technology of intellectual property rights protection has caused the intellectual property system that encourages innovation to become an obstac
hinder. ①In addition, due to network effects and global economic integration, technical standards have become
The obstacles to competition in the domestic and foreign markets, this is particularly true in my country’s intellectual property licensing environment
protrude. Therefore, when implementing anti-monopoly laws and regulations, special attention should be paid to the market entry formed by intellectual pr
Obstacles to maintain an open market competition environment. For example, in anti-monopoly on the refusal of intellectual property rights
In the regulation of laws and regulations, this article suggests that the theory of “infrastructure” can be applied to ensure free access and maintain market
Compatibility and openness, thereby maintaining a competitive market structure.
3.2.3.2 Promote innovation
Technological innovation is a key factor in economic growth, and the promotion of innovation is particularly important for our country.
Therefore, both my country’s intellectual property law and anti-monopoly law take innovation as the value goal,
When monopolizing the licensing of intellectual property rights by laws and regulations, of course, we must also pay attention to the impact on innovation.
In the case of technology introduction, special attention should be paid to the impact of the licensing behavior on the licensee’s innovation motivation and i
Attribution of results. For example, in the grant-back clause, it is stipulated that the licensor shall have the exclusiveness of all improvements made by the l
The right of this type of clause is a serious obstacle to the licensee’s motivation for innovation. Many enterprises in our country are introducing technology
After the operation, subject to the harsh grant-back clauses in the technology license, they neglected to carry out technological transformations, but were sa
The processing plants of Chinese companies have not promoted their technological innovation capabilities through technology introduction. In this regard,
Ben’s experience is worth learning from. As we all know, Japan implemented the basic industrial policy of building a country by technology after World W
Introduce a large number of American advanced technology, innovate on the basis of imitation, and obtain independent intellectual property rights. The mo
It eventually ranks among the technological powers.
Of course, in terms of promoting innovation, for certain strategically significant industries, in addition to introducing more
Local governments must pay attention to the development of local enterprises and focus on independent innovation. The company’s technology spillovers a
Often limited, often interfered by a series of factors such as politics, such as the United States restricting US chip manufacturers’ exports to China
High-end chips and so on. Only through technological innovation to raise the technical threshold of foreign investment can the national industry be truly
To be competitive, the technological spillover of multinational corporations will accelerate. Therefore, in the process of developing national industry, it is n
Attach great importance to the issue of independent innovation. In this regard, the direct role of the intellectual property system seems to be reflected in
It is more obvious, but the fair and open competition environment created by the anti-monopoly law is also a necessary prerequisite.
① The chapter on technical alliances and technical standards in this article has a more in-depth discussion on this.
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3.2.3.3 Safeguard national interests
Safeguarding national interests is a manifestation of the value of legal instruments. Our country is currently
In the stage of accelerating industrialization, the technology comes from independent development and introduction of technology, with the introduction of
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The new model focuses on integrated innovation and introduced technology digestion, absorption and re-innovation, with few original innovations. It's decmy country currently plays the role of the licensee in the licensing of intellectual property rights. This positioning is the same as around the 1970s
Japan has great similarities. In 1968, Japan issued the "Guidelines for Anti-Monopoly of International License Agreements."
A bill specifically targets Japanese companies as licensees in international licensing agreements, imposing restrictions on foreign licensors.
"Disproportionate burden", regulated by interventionist policies rather than by examining the actual impact of restrictions on competition
Restrictive behavior. [104] Of course, the current international environment and China’s status as a member of TRIPs both mean
It is impossible and unnecessary for China to adopt Japan’s policies and measures at the time, but Japan’s historical experience is indeed
We have provided valuable enlightenment, that is, under the current stage background of our country, the intellectual property licensing
In order to carry out anti-monopoly regulations, it can be slightly stricter than European and American countries.
Slightly strict anti-monopoly regulations can effectively offset the increasing level of international intellectual property protection.
The adverse effects brought by our country. my country is already a member of the WTO and must abide by the TRIPs treaty for intellectual property
Standards for the protection of rights. The TRIPs treaty was developed in developed countries dominated by the United States for the
Signed under the background of using its technological advantages to obtain excess profits, which provides for higher protection of intellectual property rig
level. It is generally believed that the level of protection of intellectual property rights and a country’s economic development level, historical background,
Traditions, cultural customs, etc. are closely related, and the intellectual property system, which is completely affected by the international environment, ha
China does not have a universal effect. In my country's theoretical circles (mainly economics and law),
There have always been cases where China’s current level of intellectual property protection does not match the country’s economic development level and
In practice, multinational companies use high-level intellectual property protection to obtain monopoly status,
The social public is generally disgusted with the behavior of squeezing out national enterprises. ① Therefore, the slightly stricter anti-monopoly law
Regulations provide a deterrent effect on the abuse of intellectual property rights at least at the institutional level, and to a certain extent,
The expansion of property rights has been checked and balanced.
The view that advocates slightly stricter anti-monopoly regulations must clarify a possible misunderstanding: this view does not
It is not a denial of the intellectual property system. The view that intellectual property and antitrust
Based on the opposing logic of the two, the facts have proved that although there is a certain tension between the two, they are definitely not the other.
This opposition. Strict anti-monopoly laws and regulations will not make the intellectual property system illusory.
The expansion of body, content, and time limit is not affected by the anti-monopoly law.
3.3 China's intellectual property licensing anti-monopoly legislation model selection and principle of illegal identification
The legal provisions on intellectual property in my country’s current "Anti-Monopoly Law" are stated as follows:
① This article does not mean that my country's current level of intellectual property protection is too high, but merely displays some opinions. For the current stage, what should our country adoptWhat level of intellectual property protection to use is another grand research topic.
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Intellectual property laws and administrative regulations stipulate that the exercise of intellectual property rights does not apply to this law. However, opera
This law shall apply to acts of abuse of intellectual property rights, excluding or restricting competition. "It is clear that our country has adopted knowledge
The applicable exclusion system of property rights only regulates the abuse of intellectual property rights. Refer to the prevailing international society
Practices, as well as our country’s legislative and judicial traditions, when regulating intellectual property licensing, it is necessary to regulate
Set rules with higher operability. The following is the basic legislative conception of this type of regulation in this article.
3.3.1 Mode selection
The normative legal documents on intellectual property licensing and anti-monopoly laws and regulations that have great influence in the internationa
It is the Antitrust Guidelines for Intellectual Property Licensing in the United States in 1995, and the
For certain types of technology transfer agreements, Regulation No. 772/2004 of Article 85(3) of the "Rome Treaty" is applicable.
"Regulations" (hereinafter referred to as the 772/2004 Regulations of the European Communities) and related guidelines, the "Special
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"Guide to the Anti-Monopoly Law in the Lihe Technology Licensing Agreement."The United States’ Antitrust Guidelines for Intellectual Property Licensing and the European Union’s 772/2004 Regulations can be respectively crow
It is based on the tendency of methodism and ruleism. In this guide, the U.S. treats most of the
The restrictive clauses in the same China stipulate that the principle of reasonableness should be used for analysis and evaluation, and comprehensively def
The three market areas that may be affected clearly indicate the main factors that should be considered, and clearly clarify the
Comparing the trade-offs of benefits and damages used in licensing actions. According to these regulations, the U.S. antitrust agency must investigate
Clarify whether such restrictive clauses in the license contract have an adverse impact on competition in the involved market.
When the answer is affirmative, it is necessary to further determine whether the two parties of these restrictive clauses realize the price of the relevant intel
Value, whether the positive impact it produces can offset the above-mentioned negative impact on competition, and thus from the overall
To see whether it has the effect of promoting competition. In short, the main purpose of the 1995 Guidelines of the United States is to provide a
An analysis mode or method. The European Union’s 772/2004 regulation adopts a combination of general prohibition and exemption procedures,
The system of combining separate exemption and block exemption to control intellectual property licensing and other aspects of anti-competition
Disputes, while maintaining certain flexibility and enhancing the certainty of the law, so that the parties, law enforcement agencies and the law
The court can clearly know what kind of behaviors are permitted, prohibited and exempted by the law, which also enhances the operability of the law
And enforceability. In other words, the EU pays more attention to providing parties with relatively clear rules of conduct.
The definite guidance, as for the analysis of permitted behavior, is mainly explained through the accompanying guidance. [105]
Japan’s 1999 "Guide to the Anti-Monopoly Law in Patent and Know-how Licensing Agreements" can be said to be
The strengths of both the United States and the European Union: It analyzes both the need for certain types of restrictions and its adverse effects on compet
Possibility and weighing it-reflecting the similarities with the U.S. principle of reasonableness, the restriction clauses are divided into
There are three types of white clauses, grey clauses and black clauses—obviously refer to the EU’s block exemption system. this
This model on the one hand highlights the characteristics of statutory law countries’ emphasis on regularism, and makes the application of rules stronger.
The operability and guidance to the parties’ behavior. [106]
This article believes that my country should refer to the European Union and Japan’s models when formulating relevant regulatory legal documents.
Pay attention to the formulation of rules. The reasons are as follows: First, my country's statutory law tradition determines the tendency of ruleism.
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my country is a country of statutory law, which is significantly different from the tradition of judge law in the United States. The United States gives judge
The judicial tradition of discretion is based on the soil of the elite selection system of judges, which is obviously not our country’s judicial system.
The current state of the system also does not conform to the public's legal psychology. So, in general, the methodology is not
Suitable for our country. Second, the uniqueness of intellectual property anti-monopoly regulations especially requires relatively definite rules. Anti-ridge
The basis for the establishment of the ruling is the government intervention in the case of market failure, and the judicial and enforcement of the anti-mono
In this case, the application of methodism can easily lead to excessive government intervention in the market. In addition, in the anti-intellectual property r
When monopolizing laws and regulations, not only judges or law enforcers are required to have good legal professionalism, but also certain
Economics knowledge background and related professional knowledge background, through the formulation of relatively definite rules, it is helpful to avoi
The instability of judicial or law enforcement caused by different academic positions.
3.3.2 Principles for the determination of violations
A major basic theoretical issue of the anti-monopoly law is the principle of identifying illegal acts of restrictive competition, which is also called anti
The illegal confirmation principle or basic principle of the monopoly law, that is, what kind of standard is used for specific restrictive competition behavior
Then to confirm whether it is illegal. Adopting different principles for determining violations of the law to judge the same restrictive
The conclusion on whether it is illegal is likely to be the opposite. The two major principles for determining violations of the anti-monopoly law are the pri
Principle of illegality.
The principle of per se illegality refers to certain behaviors of enterprises that restrict competition, regardless of the consequences, their behavior
All are subject to sanctions under the anti-monopoly law. The principle of reasonableness is a basic principle in the anti-monopoly law.
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The influence of learning on the anti-monopoly law is deepening, and the principle of reason has gradually surpassed the principle of its own illegality and
The most important principle of antitrust law. The principle of reasonableness is not only an analytical method of the anti-monopoly law, but also an
The principle of substantive judgment has more complicated connotations. According to Robort H. Bork, the United States
The definition of the principle of reasonableness, which means that certain actions in the market that are alleged to be anti-competitive are not considered n
Illegal, but need to pass on the behavior of the enterprise or the operator in the business or trade field itself and its related background
Make a reasonable analysis to determine whether it will materially harm competition, harm the overall economy, or maximize wealth,
Increase the public interest and other goals, or contribute to the improvement of production or distribution of products, or the promotion of technological d
Economic progress, while enabling consumers to obtain a considerable degree of benefits is an illegal standard.
A legal confirmation principle that balances and chooses between benefits and related values. Among them, the court is required to
When dealing with litigation cases in an individual manner, the principle of reasonableness is the most important factor in the comparison of behaviors that
The content of the heart. [107]
The respective advantages and disadvantages of the principle of illegality and the principle of reason are very obvious, and the advantages of one part
To correspond to the shortcomings of the other party, and vice versa. The principle of violation of the law itself has high litigation efficiency and low litigat
This saves the court from complicated case analysis and saves time and expense. In the act of litigation, the original violation of the law
It is more advantageous to the plaintiff, because the defendant only has to implement an act that restricts competition
As a result, the court can rule him out of the law, so that it is relatively easy for the plaintiff to produce evidence. On the other hand, the lack of its own ille
The point is not flexible enough and too strict. Some scholars pointed out that the focus of trial cases using this principle is often too much
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The focus is on finding evidence of collusion, rather than the actual consequences of the behavior. In many cases, the defendant is punished.
In some years afterwards, prices in this market rose instead. This shows that all the energy of law enforcement agencies is spent on a
In these cases that did not produce actual consequences, they neglected areas that really need attention. This is a kind of justice
Waste of resources. More importantly, the clarity of the rule also leads to its rigidity, focusing only on the agreement
The nature of the case cannot be flexibly adapted to the circumstances of the case, and sometimes contradicts the actual situation. Therefore, its application
Many restrictions, so that its boundaries become blurred. [108]
Corresponding to the above analysis, the principle of reason has more flexibility because it only focuses on restricting competition.
The consequences of restricting competition are not concerned, but the principle of reasonableness involves
Economic analysis and value judgment, litigation costs are extremely high and litigation efficiency is low. For the plaintiff, due to the information
The asymmetry and the facts to be proved involve a large number of economic professional issues, and it is difficult to win in litigation. costly
Litigation also has disadvantages for the defendant. For example, under certain circumstances, the plaintiff may abuse the right to sue the defendant.
In order to reduce costs, the defendant often chose to give the plaintiff a certain amount of compensation. Therefore, in the practice of U.S. antitrust law,
There are many cases where mediation is used to close cases. Another shortcoming of the principle of reason is its uncertainty, that is, it has no shape.
As a definite standard of judgment, the anti-monopoly law as a law has greatly reduced the guidance for corporate behavior.
It is difficult for enterprises to grasp their behavior in competitive activities. Of course, as some scholars have pointed out, the shortcoming of uncertainty
It is not so much the shortcomings of the principle of reasonableness, as it is the shortcomings of the anti-monopoly law itself, which are insurmountable. [1
It is precisely because of the shortcomings of the principle of reasonableness that scholars have put forward the rules of per se (rules of per se
legality). The principle of legality itself is a reflection of advocating deregulation of the anti-monopoly law.
The scholars of the school proposed that Posner’s "Anti-monopolistic Restriction of Geographical Limits" published in the Chicago Law Review in 1981
The next step in breaking laws and regulations: itself is legal" ① is the representative. The basic point of view of its own legal principle is:
For those behaviors that are clearly economically efficient but seemingly anti-competitive, they are directly judged as legal.
For example, vertical restrictions are often conducive to competition or efficient. Therefore, courts should use their own legal principles
To deal with these behaviors. The principle of its own legality has the same efficiency and cost of litigation as the principle of its own illegality.
Small advantages, such as Frank H. Easterbrook pointed out that the principle of legality itself can minimize the court
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Law) cost and reduce the risk of making mistakes. [110]
Based on the above analysis of the universality of the principles, in the field of intellectual property anti-monopoly laws and regulations, this article
It is believed that the current popular trend should be adopted, that is, based on the principle of reasonableness, based on the principle of illegality and its o
The principle is complementary.
First, the principle of reasonableness meets the overall requirements for a balance between intellectual property rights and anti-monopoly laws. With
The importance of progress and innovation to economic growth is increasing. How to maximize the production of knowledge and transform it into
Productivity is the most important factor that countries need to consider when they legislate and judicial.
The most obvious manifestation in the field of law. However, there is always a certain time between the formulation of the system and the development of
In this case, the use of reasonable principles can maximize the
① The English title is The Next Step in the Antitrust Treatment of Restricted Distribution: Per Se Legality
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To resolve this lag, and achieve the ultimate legislative purpose. Therefore, in today's rapid technological development,
Applying the principle of reasonableness is an inevitable choice for the anti-monopoly law and intellectual property law to realize the incentives for innova
When property rights are subject to anti-monopoly laws and regulations, the main factors to be weighed when applying the principle of reasonableness are
Efficiency and innovation efficiency, among which innovation efficiency is the most important indicator, while considering the
Whether and to what extent the social welfare produced can be enjoyed by consumers.
Second, the principle of per se illegality and the principle of per se legality also have positive meanings. And the previous article about our country's
Part of the choice of the model of the anti-monopoly legal system for property rights licensing is in response to each other. When formulating relevant norm
Nor should we ignore the positive significance of the principle of its own illegality and its own legal principle. In fact, the principle of per se illegality and
The principle of legality itself is an evolution of the principle of
Some anti-competitive behaviors that obviously have non-efficiency factors (or anti-competitive behaviors that obviously have strong efficiency defenses)
It is summarized as illegal (or legal), which effectively saves judicial costs and improves judicial efficiency. Jian
The statutory law tradition in our country and the fact that the field of anti-monopoly law is still a brand-new subject in our country.
Through higher-level normative legal documents, some of the more definite contents have been
The legal principle is determined, which is a more appropriate legislative model. In practice, the EU and Japan’s
This approach is adopted in the legal documents of the right to anti-monopoly regulations. For example, the core restrictions of the European Union can be
Restrictions, etc., are their own illegal and legal use.
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Chapter 4 Anti-monopoly of Abuse of Market Power in Intellectual Property LicensingLegislation
4.1 Anti-monopoly legislation on tying in intellectual property licensing
4.1.1 Definition of tying behavior in intellectual property licensing
Simply put, tying means that when the buyer buys the goods he needs, the seller requires him to buy the goods.
He does not need goods or services as a condition. In the antitrust law, tying in the strict sense refers to the seller and
When the purchaser signs a contract, the purchaser is forced to purchase properties that are not related to the contract either in nature or in trading habits.
Products or services. The purpose of this agreement is to allow the seller to use its dominant position in the market to pass
The implementation of tying behavior extends the dominant position of the market to the tying product market, thereby restricting competition and gaining
The result of high monopoly profits. [111]①
Tying in intellectual property licensing means that the licensor compels the licensee to purchase,
Accept or use other intellectual property rights, services or products. In intellectual property licensing, tying is a common
Phenomenon. For example, in the field of patents, patented parts tie-in accessory parts, and patented methods tie-in equipment that implements the method
Tying of equipment, patented equipment, after-sales service, patent tying trademarks, etc.; in the field of copyright, such as the copyright of a movie
License to tie-in the copyright license of other movies. It is not allowed to obtain a copyright license for a song alone, but only for
Several songs were collectively licensed for copyright, etc. In practice, if the tying is another or a bunch of intellectual property
Rights, which is customarily called a package of licenses, and tying goods or services is called tying. In essence, the two are
If they are consistent, the basic competition law theory of tying is applicable. Tying behavior in intellectual property licensing generally appears
The following features:
First, one of the basic prerequisites for the anti-monopoly regulation of tying is that the tying product and the tying product are mutually exclusive.
Independent goods or services. In the tying behavior in intellectual property licensing, the trend of technology integration makes the distinction between ty
There are considerable difficulties in selling and selling goods, which makes anti-monopoly actions against tying activities involving intellectual property r
The legal system is more complicated. Take the case of Microsoft in the United States as an example. Microsoft's success in the computer software market
To a certain extent, it is not the result of the advanced nature of the product itself, but is due to Microsoft’s marketing of software product integration.
Sales strategy. There are many disputes in theory and practice in judging whether Microsoft constitutes an anti-competitive tie-in sale.
Discussion. Some scholars have pointed out that product integration (or the opposite expression: product independence) is a tying agreement
The key to anti-monopoly regulations. This question is also one of the most mysterious concepts in economics, because it
Contains basic theories about consumer needs and consumer welfare. [112]
① Although China generally uses concepts such as buyers and sellers in the concept of tying, tying certainly does not only occur in the field of commodity sales. So, Zeng
Some scholars have pointed out that translating tying and tie-in into tying is improper, and it is easy to misunderstand that it is only between buying and selling. In fact, this sectionThe tying discussed took place in the field of intellectual property licensing.
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Second, in tying that does not involve intellectual property rights, the tying product and the tying product may be complementary products to each oth
The relationship may also be an alternative product relationship, or even a completely independent product or service that is not related.
However, in the tying behavior involved in intellectual property licensing, especially when the tying product is a commodity or service,
Tying products and tie-up products often show a complementary relationship. Such as Microsoft’s operating system software and application software
Tying, Kodak’s tying of parts and after-sales services, etc. In this case, tying is not only possible
Anti-competitive effects such as improper extension of monopoly power can also be used as a discriminatory pricing tool by tying companies.
Third, the anti-monopoly laws and regulations on tying generally presuppose that the tying enterprise has a dominant market position.
In the tying of intellectual property licensing, the intellectual property involved must be considered when judging the licensor’s dominant position
The impact on dominance. For example, the United States has dealt with tying in intellectual property licensing for a long period of time.
Behavior, the presumption of intellectual property rights is of course dominant, thus applying the principle of its own illegality. ①
4.1.2 Anti-monopoly laws and regulations on tying in intellectual property licensing in the United States, Europe and other countries and r
4.1.2.1 Relevant legislation and practice in the United States
The United States’ anti-monopoly regulations on tying are embodied in Article 1 of the Sherman Act and the Clayton Act.
Article 3. Article 1 of the Sherman Act is a principled provision on contracts or joint acts that restrict competition.
However, Article 3 of the Clayton Act clearly stipulates the tying behavior: “Businessmen shall not
Regarding whether the product is granted a patent, the product is for the purpose of
Use, consume or retail, lease, sell or sign sales contracts in the territories and other territories under its jurisdiction.
On the condition that lessees and buyers do not use their competitors’ commodities, fixed prices, rebates and discounts are provided.
Deduction, if the act substantially reduces competition or aims to form a commercial monopoly, it is illegal. "The above provisions, from
Literally, it just condemned exclusive transactions. Tying also has the same effect as exclusive transactions. pass through
Requiring the buyer or lessee to purchase certain products only from the seller or lessor actually prevents the buyer or lessee from
The tenant buys and sells other similar products.
In a nutshell, the law and theory of tying in the United States can be simply divided into three stages: "Classical tying
Principles", "Chicago School" and "Post-Chicago School", correspondingly, anti-monopoly regulations on tying can be
Simplified to the application of the principle of its own illegality, its own legal principle, and the principle of reasonableness. [113] Using the above-mentione
On analyzing the regulation of tying behavior in intellectual property licensing, it can also be divided into the following stages:
First, the stage of exemption from tying in patent licensing before the Clayton Law came into being. In the early
In the Heaton-Peninsular case, the Sixth Circuit upheld the tie-in clause on the grounds that it was buttoned
The number of sales depends on the buttoning machines protected by patents, and the court declared that control of the button market has come
Originated from a patented machine, it is a legal result. [114] The Supreme Court reached the same conclusion in the Henry case.
In theory, the reason is that tying paper, ink and other materials when selling mimeographs will not cause harm to the buyer.
Second, regulate in the name of patent abuse. Following the adoption of Article 3 of the Clayton Act ② , the US Supreme Court to change
① See the discussion on page 48 of this article for details.② In the IBM Corp. v. United States, 298 US 131, 137 (1936).
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Changed the tolerant attitude towards patent tying and replaced it with patent abuse. A well-known case is Motion in 1917
Picture Patents Co. v. Universal Film Manufacturing Co. case. In this case,
The patentee who has a patent on the animation film playback and supply machine requires that the licensee can only play the video that it has authorized.
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film. The Supreme Court denied the validity of this provision to patent misuse ① grounds and the public interest, but avoidArticle 3 of the Clayton Act was applied because that would require an anti-competitive assessment. [114] After 25 years, the most
In the Morton Salt Co. v. GS Suppiger Co. case, the High Court once again evaded Clayton
Application of Article 3 of the Law. ②In short, at this stage, patent abuse is used to regulate tying, and it does not examine whether it causes
Anti-competitive effect and led to anti-monopoly law allegations. The reason for this phenomenon is that the anti-monopoly law and patent
The popular view that Lifa is in an antagonistic relationship.
Third, combine patent abuse and antitrust laws to regulate tying and presume that there is a market in patent tying.
Field dominance. The International Salt Co. v. United States case in 1947 established the patent
The principle of anti-monopoly law that tying is itself illegal. The Supreme Court declared that patent tying imposed illegal restrictions on trade.
Violation of Section 1 of the Sherman Act. The court did not explain why the patent tying was found to be illegal, but only cited
A series of previous cases where tying is judged to be patent abuse are used to prove that the tying is illegal and reasonable.
sex. In the subsequent Paramount Pictures case [115] , the tying in copyright licensing was also judged to be the
Body breaking the law. In the United States v. Loew's case, the Supreme Court applied the market power assumption for the first time:
The court simplified the review of market power and held that in the tying product market, there is
It only needs to prove (1) a certain degree of control over prices and the ability to exclude competition; (2) the product’s attractiveness to consumers
Cited; (3) quality characteristics. [114] During this period, the U.S. administrative law enforcement agency put the tying in patent licensing
As the head of the "nine no" principle, it has become a restrictive practice that is expressly prohibited.
Fourth, gradually shift to the principle of reasonableness. Since the 1970s, criticized by the Chicago School of classical tying theory
The impact of the US antitrust law on tying has gradually changed from its own illegality to the principle of reasonableness. However, for patents
Tying, the principle of illegality in itself is still applicable, and a very important reason is that the market dominance of patented products
Assumptions are still being pursued. In the Loew's case, the court declared: "If the sale is protected by a patent or copyright,
It is presumed to have economic dominance. "With the promulgation of the Patent Abuse Amendment Act in 1988,
Patent abuse requires judgment of market power, therefore, the application of the principle of illegality to patent tying also loses
Support for patent abuse. At the same time, the assumption of market power for intellectual property itself has been increasingly affected.
Some scholars believe that since the 1980s, the court has refused to apply this assumption. [12] 90 years
Since then, in the 1995 "Intellectual Property Licensing Antitrust Guidelines" issued by the US Department of Justice and the Federal Trade
In South, no tying agreement is deemed illegal. The guide believes that tying agreements are acceptable under the following circumstances:
Questioned: (1) The seller has market power for the tying product, (2) the tying agreement is for the tying product
The main purpose is to change the Supreme Court's decision in Henry's case.① In this case, the term patent abuse was not used directly, but rather pointed out that the exercise of patents should not violate the public interest.② In this case, the Seventh Circuit applied Article 3 of the Clayton Law to the patent tie-in clause, but the Supreme Court refused to apply it, instead adoptingUse patent abuse and public interest grounds. Quoted from GS Suppiger Co. v. Morton Salt Co., 117 F.2d 968, 969 (7thCir. 1941)
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The competition in the relevant market has a negative impact, (3) the efficiency of tying sales is not enough to make up for the anti-competitive effect. [116]
The famous US Department of Justice sued Microsoft in a monopoly lawsuit because Microsoft was selling its operating system
Caused by tying other software. On April 3, 2000, Judge Jackson made a legal ruling on the case.
It is believed that Microsoft has abused its monopoly position in personal computer operating systems and violated the anti-monopoly law. The ruling held
Microsoft’s right to license personal computer operating systems worldwide constitutes a
monopoly. In June 2001, the District of Columbia Circuit Court of Appeals ruled on the case and set aside the
The original judgment of the soft company divided into two, and the case was sent back for retrial. In its judgment, the court pointed out that
The tie-in agreement for platform software products shall be in accordance with the “principle of reason”
For analysis, the principle of "itself illegal" cannot be used.
Fifth, the principle of reasonableness is fully established and turned to a position that is beneficial to the patentee. After 2006, the United States
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The tying cases of the Supreme Court and other courts in intellectual property licensing show that the current US judicial department not only
The principle of reasonableness is applied to the tying behavior, and even to a certain extent, the intellectual property rights holders are overly favored. In 2
The Illinois Tool Works Inc. v. Independent Ink, Inc. case is the
A representative case of the application of the principle of reasonableness in the tying behavior in the licensing process. The plaintiff produced a patented i
Jet heads (ink jet printheads) and ink tanks, as well as those without patent protection, are specially adapted to the machine
Of ink. The plaintiff licensed these devices as a package to the manufacturer, who used the device in kraft paper and other
He printed bar codes on wrinkled materials. The license agreement requires manufacturers and end users to purchase ink from the plaintiff.
The defendant developed an ink that is also applicable to ink jet heads and ink tanks.
Competition and filed anti-monopoly law charges against the plaintiff’s tying clause. The district court refused to apply this
The principle of personal violation, pointed out that it should be analyzed for market power and made a judgment in favor of the plaintiff, but
It was the Federal Circuit that overturned the district court’s decision and held that the trial should be conducted based on the principle of its own violation
At that time, the plaintiff was required to bear the burden of proof to prove that it had no market power, and the case was sent back to the district court for r
The Supreme Court of the United States issued a case transfer order, considering the overturn of the principles established in Loew's case 43 years ago.
In March 2006, the Supreme Court unanimously ruled in support of the district court’s decision, claiming that the existence of a patent does not lead to
Assuming the existence of market power, it is for the plaintiff to prove that the patentee has market support in the sale of goods market.
Power. This case is considered to be the Supreme Court’s application of anti-monopoly laws and regulations regarding tying in intellectual property licensin
A clear statement of the principle of reasonableness, and its biggest reform is the burden of proving the market power of tying companies
It mainly comes down to the accuser, not the original tying company to prove that it does not have market monopoly power. [117] But
Some scholars also said that this case is fatal to the after-sales maintenance market, and this consequence will lead to
In the future, there will be a lack of competition from independent maintenance organizations in the after-sales maintenance market, which is detrimental to
In the Monsanto Co. v. Scruggs case, the U.S. Judicial Department made further progress on tying in patent licensing.
Step to relax regulations. In this case, the seed company must purchase designated seeds when selling patent-protected seeds.
The court supported the tie-in sale of herbicides. ①
① Monsanto Co. (hereinafter referred to as Monsanto) enjoys an item involving plant-to-insect and glyphosate herbicides (glyphosate herbicides)The gene patent for the resistance of Monsanto, Monsanto uses this patented technology to cultivate soybeans and cotton that are resistant to glyphosate herbicides, known as
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4.1.2.2 Relevant legislation and practice in the European Union
The EU's anti-monopoly regulations on tying are mainly embodied in Articles 81 and 82 of the Rome Treaty. According to "Ro
Article 81(1)(e) of the Marathon Treaty stipulates that “requires the other party to accept
Additional obligations that have nothing to do with the items involved in the contract are considered as conditions for the conclusion of the contract. The ag
Exemption unless it meets the provisions of Article 81(3) of the Treaty. Article 82 provides for
Regarding the abuse of the dominant enterprise, (d): the conclusion of the contract depends on the trading partner’s additional obligations
Acceptance, regardless of its nature or business practices, this additional obligation has nothing to do with the subject matter of the contract.
In the European Community Regulations 772/2004, there is no explicit reference to the issue of tying. In the subsequent guide,
The tying problem is analyzed. The guide believes that the premise of tying or bundling is that the involved products or
Technologies are independent in the sense that they have independent requirements. If the product or technology must be linked in one
It can’t be considered as tying or bundling. According to Article 3 of Regulation 772/2004 of the European Communities
Article concerning the exemption of the market share threshold, the parties’ tying or bundling sales agreement with the
The meeting cannot be automatically exempted. The restrictive consequences of tying or bundling agreements are mainly to exclude the tying products
The competition between product suppliers and tying may also allow the licensor to maintain a dominant position in the tying product market. at the same t
Tying sales may also gain efficiency. This mainly occurs when the tying products are designed to make full use of licensed technology or reach
When necessary to the quality standards recognized by both parties. At this time, tying is generally regarded as not having restricted competition.
The nature of the dispute may be exempted in accordance with Article 81(3) of the Treaty of Rome. sometimes,
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Tying can enable the licensee to use the licensed technology more effectively, which will have the effect of promoting competition. At this time,
Even if the tie-in sale complies with Article 81(1) of the Treaty of Rome, and the parties’ market share is higher than
The starting point provided by the regulations may also be exempted due to compliance with Article 81(3) of the Treaty. visible,
According to current EU regulations, if the party’s market share is lower than the market share specified in the 772/2004 Regulation
If the party’s market share is higher than the starting point, then the tie-in sale will be considered as satisfactory.
When the use of technology is necessary or can enable the licensee to use the licensed technology more effectively, it can also be used in accordance with t
Article 81(3) is exempted.
The EU’s anti-monopoly law rules on tying in intellectual property licensing are more representative
The Hilti case and the recent EU Microsoft case reflect the EU’s stricter attitude towards tying than the United States. exist
In the Hilti case, the Commission of the European Communities considered that Hilti had a dominant position in the nail gun market,
It is Roundup Ready (R) soybeans and cotton and owns this market (the market for soybeans and cotton products resistant to herbicides)Monsanto also sells glyphosate herbicide. Roundup Ready (R) soybeans and cottonHerbicides already possess resistance. Beginning in 1996, Monsanto began to license its bioprocess, which contained the following restrictions:It is forbidden to use the fruits of the licensed patented product (crop) for the next season's exclusivity provision. It was signed in 1996 toThe 1998 license agreement further requires that if the licensee uses herbicides, only Roundup brand herbicides (Rounduprestriction). Scruggs purchased Roundup Ready(R) soybean and cotton seeds from a seed company, but did not signThe above license agreement. Scruggs planted the purchased seeds and then replanted the harvested fruits as seeds. Monsanto on thisAn infringement lawsuit was filed. Scruggs denied the infringement and confirmed that Monsanto's patent request was invalid, and Scruggs also counter-sued MonsantoThe tie-in sale violated antitrust laws. The district court supported Monsanto’s claim and issued a permanent ban on Scruggs from using the insuranceThe ban on the remaining seeds. The Federal Circuit upheld the district court's injunction and rejected Scruggs' antitrust law allegations.
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The tying of nails in the sales of product clip headers hinders or restricts independent producers from entering the market. The ruling is punished with 600
10,000 Euro currency fines. After Hilti appealed to the European Court of First Instance, the European Court of First Instance upheld the European
The ruling of the Community Committee. In the Microsoft monopoly case, the European Commission analyzed the tying sale and believed that if
If the following conditions are met, it constitutes a tying sale prohibited by the Anti-Monopoly Law: (1) The tied sale and the tied sale are two independent
Products; (2) The company has a dominant position in the sale of goods market; (3) The company does not consider allowing consumers to obtain
The option of tying products that does not include tying products; (4) tying products exclude competition. [118] As the European Union identified Microsoft’s
The tying behavior meets the above requirements, so it is ruled as illegal tying. Some European scholars pointed out that the EU Microsoft case
There are many factors to consider consumers in the judgment, because “the goal of the antitrust law is to protect consumers and at least not
Directly protect competitors, so although Microsoft’s competitors are mostly US companies, EU sanctions
Tougher than the United States". [119]
4.1.2.3 Relevant legislation and practice in Japan
In the 1968 Anti-Monopoly Guidelines for International License Agreements issued by the Japan Fair Trade Commission, “restrictions
The source of raw materials and parts is regarded as an unfair restriction clause in the international license agreement.
The Trade Commission has the right to request the parties to make amendments. The subsequent 1989 "Regarding the Control of Patent and Technical Secr
In the Guide to Unfair Trading Methods in License Agreements, it is not technically or not for maintaining the reputation of
It is necessary to restrict the source of raw materials, which is regarded as an unfair restriction clause;
The required two or more technologies are regarded as not unfair restrictive clauses, and tying is not a technology
The two or more patents required by the above are regarded as potentially unfair restrictive clauses.
The 1999 Anti-Monopoly Law Guidelines for Patent and Technology Secret License Agreements are applicable to tie-in sales.
The method of theoretical analysis is mainly based on the analysis of monopoly or attempted monopoly: if a dominant enterprise communicates with
Over the restrictive clauses in the license agreement, dominate or exclude the business activities of other enterprises, restrict a certain product
Or the competition of technology in the market may be illegal because it constitutes a private monopoly. Therefore, the guidelines for tying
Two scenarios of blanket licensing and restrictions on the source of raw materials purchased by the licensee were analyzed. For the former, such as
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If this obligation to the licensee forces the licensee to obtain implementation expertise from the licensor or a person designated by the licensorRelated technology, restricts the licensee’s freedom to choose appropriate technology, or restricts the licensee’s
Competitor’s transactions, which have a negative impact on the order of competition in the market, should be regarded as unfair transactions.
Violation of the relevant provisions of the Anti-Monopoly Law. However, if a blanket license is necessary for the effective implementation of the patent
In principle, it is not considered to be an unfair transaction. For restrictions on the purchase of raw materials and parts by the licensee
Source, the guidelines stipulate that if the licensor requires the licensee to purchase the original
Materials, restrict the licensee’s choice of the source of raw materials and parts, and make the production,
Sellers cannot easily obtain customers or the opportunity to trade with licensees, which brings competition to the market.
Negative effects should be regarded as unfair trading behaviors that violate the relevant provisions of the Anti-Monopoly Law. but,
If only restrictively stipulating the quality of raw materials and parts, etc., it is not enough to guarantee the effective implementation of the licensed technol
Or in the case of maintaining the reputation of the trademark, in order to ensure the effective implementation of the licensed technology or to maintain the r
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In principle, restrictions on the sources of raw materials and parts are not considered as unfair transactions.
In practice, the US Microsoft Corporation case around 1995 is a typical case of tying. Microsoft and Japan
Several personal computer manufacturers have reached an operating license agreement. According to this agreement, these Japanese-made
The business must install Microsoft's tabulation application software and document production application software on the personal computers it manufactu
Microsoft rejected the personal computer manufacturer’s suggestion to obtain a separate license for the application software and put word as a bundle.
Tie products and sell them through excel. As a result of bundled sales, by 1997, Microsoft’s word
Won the largest market share in the word processing market. ①In this regard, the Japan Fair Trade Commission proposed a proposal
The controversial judgment held that Microsoft’s practice of bundling sales has violated Article 19 of the Anti-Monopoly Law,
It is recommended that Microsoft immediately terminate the bundled sales agreement and let the personal computer freely choose the applications it needs
Software, including excel and word, etc. [120]
4.1.3 Anti-monopoly Law Analysis of Tying in Intellectual Property Licensing
The anti-monopoly regulation of tying is mainly based on two reasons: one is that it violates the buyer’s right to choose,
The second is that through tying, monopolistic enterprises improperly extend market power to tying by means of monopolistic leverage.
Product market, thereby restricting competition in that market. The main reason for the defense against tying is that the Chicago school leader
Zhang’s efficiency factor, that is, tying can increase efficiency, so as not to harm the interests of consumers, and use monopoly
Leverage to obtain monopoly power in the tying goods market is only an intuitive judgment. In reality, the Chicago School believes that
Because monopoly power can only work in a single market, a single monopoly theory was proposed. [121]
For tying in intellectual property licensing, in addition to the above reasons, it is also necessary to consider the use of knowledge by intellectual prope
The exclusivity of intellectual property rights in the relevant product or service market imposes restrictions on competition in the tied product or service ma
In other words, people generally believe that intellectual property owners have no right to extend their statutory monopoly power to other
The market, otherwise it is considered an abuse of rights. As for the defense of tying in intellectual property licensing, mainly
Concentrating on this tie-in sale is necessary for the licensee to implement the licensed intellectual property. If the tying is the licensee’s
Necessary for the implementation of licensed intellectual property rights, such as for reasons of safety and quality assurance. Or although tying
Competition has a restrictive effect, but the licensing incentives generated by tying for intellectual property owners have a greater impact on innovation
The negative impact of the dispute is that it is always advantageous to license intellectual property compared to non-licensing of intellectual property rights
The above general analysis of tying, imposes anti-monopoly sanctions on tying in intellectual property licensing.
The behavior must meet the following conditions:
First, the perpetrator has a dominant position. In tying, only the perpetrator has control over the market
In order to force buyers to accept the goods or services they are tying. In intellectual property licensing, it is judged that the company is
Whether it has a dominant position, two aspects should be paid attention to: (1) Intellectual property itself is not a source of market power.
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For a long time in the past, the exclusivity of intellectual property has been understood as a monopoly in economics, thus strictlyTying in the licensing of intellectual property rights is prohibited. (2) When judging whether the company has a dominant position,
① Before 1995, in the word processing application software market in Japan, Ichitaro of Just Company and Word of Microsoft had the largest market share.Ranked second. Source: Xu Shiying. Japanese Anti-Monopoly Law. Doctoral Dissertation of Central South University, Changsha: School of Law, Central South University, 2006,122.
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The relevant intellectual property rights are an important judgement factor. That is, if the intellectual property rights constitute de facto industry technology
Standards, it is very likely that the company is deemed to have a dominant position. Especially when adopting the relative advantage theory① ,
If the intellectual property owner does not have a dominant market position in the sense of market share, barriers to entry, etc., if he does not
A purely intellectual property owner engaged in market development, the nature and function of the intellectual property
It constitutes a more important role for tying, which is prohibited by the anti-monopoly law.
Second, tie-in products and tie-in products are independent products. If the tie-in product and the tie-in product are a product,
It does not constitute a tie-in sale at all. Therefore, the anti-monopoly laws of various countries require that although the two may be inextricably linked,
They should still be two products or services that are functionally and qualitatively independent of each other. Licensing in Intellectual Property
This criterion has been challenged especially in intellectual property licensing in the field of the new economy. Intellectual property
Tying in licensing is often manifested as the bundled sale of complementary products, such as the tying of ink cartridges and paper for photocopiers.
Tying batteries for digital cameras, etc. The most typical is that Microsoft’s worldwide antitrust law allegations involve
Microsoft sells its operating system software bundled with application software (such as Internet Explorer). EU 2004
The committee ruled that Microsoft’s bundling of Windows OS and Windows Media Player was illegal.
Sales, this result is quite different from the previous US ruling on Microsoft. The reasons for this are in addition to national interests,
In addition to the antitrust law tradition and other factors, the most fundamental difference in court is the determination of Microsoft’s bundled products
superior. The United States and the European Union both agree with the consumer demand theory in determining the independence of tying products. Cons
Whether there is independent demand for the two products is the standard to judge whether tie-in and tie-in products are (and should
Yes) Independent product. And consumer demand is based on the empirical knowledge of existing products, in the current product and
In the service market, the continuous development and change of technology is not only the technical improvement of existing products or services, but als
And it also manifests itself as the continuous creation of new products or the overall application of the integration of existing products, that is to say, a certa
Whether the product suspected of tying is two products or a single product, there may be no existing consumer demand for judgment
Off. Therefore, in Microsoft’s bundling sales, the US court held that if Microsoft’s products are
Effective, not insignificant technical improvement (" valid, not insignificant,
technological improvement"over the prior art.), the product can be regarded as a
The new product, even if it may have independent consumer demand for its different parts. The European Union sticks to tradition
Consumer demand judgment, that Windows OS and Windows Media Player are two independent products
Taste. This article believes that the consumer demand theory still has important meaning on the issue of whether products are independent.
Meaning, because as far as product integration is concerned, the integration of any product, especially technical products, is from the perspective of techno
It is a process of continuous development and change, and it is difficult to distinguish between integrated products based on innovation and tying sales.
The previous clear boundary, while consumer demand is relatively clear, can provide effective anti-monopoly law enforcement
Reference value.
Third, it has a negative impact on competition. The negative impact of tying on competition is mainly manifested in
By abusing its dominant position in the tie-in product market, competition in the tie-in product market will be inappropriately excluded, that is,
① Relatively dominant position usually refers to a company that does not have a dominant position in the market. Under special circumstances, it is relativelyPeople have a dominant influence similar to that of a monopolistic enterprise, so the enterprise has a "relatively" strong position over the enterprise that depends on it for survival.
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Monopoly leverage. Although the Chicago School has proved through the monopoly theory and related models that in most
Under circumstances, monopoly leverage does not hold, but the Chicago school’s monopoly theory has also proved to be too simplistic
As well as the narrow definition of efficiency and other shortcomings, the Post-Chicago School revised this and reached a consensus:
If the tie-in product has market power and independent products, tying may be harmful. They
Advocate that a reasonable defense replaces the relaxation of classical tying standards. [113] Therefore, it is necessary to measure the effect of tying on compe
The degree of the negative impact of health often depends on the nature of the tie-in product, such as one-time or durable,
Is the relationship with the tie-in product complementary or non-complementary, etc., and the tied-up buyers account for the entire tie-in product market
Market share of consumers.
Fourth, there is no reasonable defense. (1) Necessity defense. In many cases, tying may be
In order to ensure the safe use or quality assurance of the sold products, in this case, tying is objectively necessary.
It is not considered illegal tying. In intellectual property licensing, this reason is more widely used. Because of knowledge
The tying behavior involved in property rights licensing is often aimed at the use of licensed intellectual property products or services.
They usually have a certain technical content and share technical participation with licensed intellectual property products or services.
Data and other information, the use of safety, quality assurance and other defenses are even more justified. Therefore, the courts often
Must analyze the authenticity of its defense reasons. For example, in the Hilti case in Europe, the company argued that
Selling nails is to prevent consumers from using nails produced by others to cause damage due to quality problems. European Commission
It is believed that there is no evidence that other people’s nails have caused accidents, and there is no evidence that they are being used.
When nailing guns, the quality of the nails of its competitors was not good. Therefore, this defense was not established. (2) Efficiency defense. superior
The defense on the necessity of quality assurance and safety can actually be regarded as an efficiency defense, because safety and quality
Quantity assurance itself is a very important efficiency. In addition, the EU’s defense on abuse of dominant position can be invoked
Reasons to prove that tying can promote economic and technological progress, improve product quality, reduce costs, and facilitate consumption
者CHOOSE. Especially in the tying of intellectual property licensing, as many scholars have pointed out, there is a problem for consumers.
Profitable. Because as a knowledge product, it contains more technical information than other products, and requires more expertise.
Information can be used more efficiently. For example, in the case of Microsoft, it can be used as an ordinary personal computer consumer.
The consumer, due to lack of technical background, requires Microsoft to remove the IE, Media Player or
Other technologies that were previously independent of Windows are not the best choice. For them, looking for,
It is a headache to download and ensure compatibility of these components with Windows. So from this perspective
In terms of tying in the licensing of intellectual property rights, it can indeed bring benefits to consumers. However, it is worth noting that
Also based on the information asymmetry, the post-Chicago school revised the Chicago School’s overly positive attitude towards tying.
Degree, and pointed out that based on information asymmetry, tying may be beneficial to consumers, but if the producer or operator
Taking advantage of information asymmetry and adopting tying schemes that are unfavorable to consumers, consumer welfare is also based on the wrong i
Weighed and damaged. [122]
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4.1.4 Suggestions for anti-monopoly legislation on related tie-in sales in my country
4.1.4.1 The realistic background of tying in intellectual property licensing in my country
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The case of Dexian v. Sony Battery in 2004 is the most typical case of intellectual property licensing in my country in recent years.
Cases of suspected tying. Sony is a manufacturer of digital video cameras and digital cameras, and Sony also has its own
Brand of rechargeable lithium batteries for the above-mentioned digital products. To prevent other brands of batteries from being used by Sony
Brand of digital products, Sony has implemented "intelligent recognition technology", that is, Sony digital cameras and digital cameras
A patented smart key recognition system (Infolithium technology) is attached to the battery for digital products such as computers.
Through this system, each battery has only an additional password that can be identified and used by Sony’s digital products.
use. Other brands of batteries cannot be applied to Sony digital video cameras and cameras without decoding.
Once consumers buy Sony's digital products, they can only choose Sony batteries. Sichuan Dexian Technology (hereinafter referred to as
"Dexian") is a domestic battery manufacturer, and its Pinsheng brand batteries are well-known in the market.
In November 2004, Dexian sued Sony in the Shanghai Intermediate People’s Court for violating Sony’s tying behavior.
On the grounds of the Anti-Unfair Competition Law, Sony is required to immediately stop using "Sony" brand lithium battery intelligent identification in C
Technology, while requiring Sony to stop using smart recognition in the production of digital camcorders and digital cameras in China
technology. ①
In addition, Microsoft’s software sales in my country often appear in the form of integrated products, and through
The tie-in strategy is a blow to my country's domestic software industry. Therefore, in our country’s current license, tying to
In the past, the unfair competition methods commonly used by multinational companies in technology licensing have seriously threatened the relevant civil
Family industry.
4.1.4.2 Existing legislation and improvement
Article 17 of the anti-monopoly law recently promulgated by our country stipulates: “Prohibit operators with dominant market positions
Engage in the following behaviors that abuse a dominant market position: ... (5) Tying goods without justifiable reasons, or
Attach other unreasonable trading conditions when trading; .... "However, due to my country’s anti-monopoly law
There is no provision for uniformly applicable defenses in terms of rationing status, and only “justified reasons” are stated in the above clauses.
In order to justify, therefore, it is necessary to make a theoretical analysis of "justified reasons" and to conduct judicial practice in judicial practice in the fu
Explain and establish the appropriate scope of “justified reasons” through relevant cases.
This article believes that in the specific anti-monopoly regulations on intellectual property licensing, in addition to the use of the aforementioned com
In addition to the analysis of the general principles of the requirements, in view of the specific situation of our country, special attention should be paid to r. . . . . . . . . . . . . .Competition in related industries in China,. . . . . . . . . Especially the situation of domestic competition in the same industry. Because no matter whether the tying will bring
The improvement of efficiency, if the tying behavior eliminates the domestic competition in the industry, any defenses cannot be offset
Eliminate the adverse social consequences of competition. And if the intellectual property owners in developed countries use the license
Tying, abusing the superiority of intellectual property rights, repelling my country’s national industry, and even hindering the development of my country’s
① However, some scholars pointed out that due to the fierce competition in the digital camera product market in this case, it did not constitute a tie-in sale prohibited by the anti-monopoly law.
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Independent development means that our country cannot get rid of the passive situation of technology importing countries, which is not conducive to the he
Continued development.
4.2 Anti-monopoly legislation that unilaterally refuses to license
4.2.1 The definition of anti-monopoly law for unilateral refusal to license intellectual property rights
4.2.1.1 Refusal to deal in antitrust law
In the anti-monopoly law, there are generally two cases of refusal to deal: one is boycott
(Boycotts), also known as Collective refusal to deal, refers to competition
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The agreement between the parties not to deal with other competitors, suppliers or customers is generally regarded as horizontalAnti-competition agreements often have the effect of endangering competition and are subject to anti-monopoly laws and regulations. The other is unilatera
Refusal to deal (Unilateral refusals to deal) means that one party alone refuses to deal with other people.
Easy situation. Generally speaking, based on the principle of private law autonomy, whether a person transacts with others depends on his
Free will, the law must not interfere, but if one of the parties refuses to deal, it may cause harm to competition
The effect may be regulated by the anti-monopoly law. Unilateral refusal to deal has an anti-competitive effect, and the premise is
Often the rejecting party has strong market power. Therefore, in antitrust laws, only the monopolist is usually prohibited from rejecting the market.
The act of refusal to deal can be defined as the monopolist’s refusal to sell or supply goods to the buyer.
behavior. [123]
4.2.1.2 The meaning and manifestation of the refusal of intellectual property rights
In the licensing of intellectual property rights, it is also possible to refuse transactions, generally referred to as refusal of intellectual property rights
license. The basic feature of intellectual property is its exclusiveness, so the intellectual property owner can obtain and use it from others
Fees, as the consideration for the implementation of intellectual property rights by the authorized person. It is also based on the exclusiveness of intellectua
The right holder can also refuse to license his own exclusive rights to others for use and implementation. Whether it is to allow others to use
Whether or not to refuse, in terms of the nature of intellectual property rights, is a manifestation of the right holders exercising their rights. Of intellectual p
In particular, the refusal to license reflects the exclusivity and exclusiveness of intellectual property rights.
According to the degree of refusal, the refusal can be divided into three situations: the intellectual property owner refuses to
Your own intellectual property rights are licensed to anyone else, and you can exercise all your intellectual property rights and obtain all
Interest, even resulting in the public’s reliance on the intellectual property owner; the intellectual property owner only grants exclusive rights
It can be given to specific people, while the permission is denied to others. This is a common form of refusal of permission for intellectual property rights;
A rare practice is that the intellectual property owner neither licenses it to others, nor does it use it himself, but instead
Intellectual property rights are put on hold, and sometimes this approach is a strategic choice for corporate competition, which is called the fight against int
slightly.
On the other hand, in terms of the relationship between the intellectual property owner and the denied licensor, it can be divided into two types of situ
Form: The permission rejection behavior with the previous permission relationship and the permission rejection behavior without the previous permission r
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This classification is particularly important in judging the monopoly intention of the intellectual property owner’s refusal to license. Generally speaking,
The refusal to interrupt the original licensing relationship will be more strictly controlled by the anti-monopoly law. Especially when
Industries with strong network effects, after initially gaining a strong market share through licensing, refused to license
It is often the competition strategy of intellectual property owners trying to monopolize.
4.2.2 Relevant legislation and judicial practice in the United States
4.2.2.1 Analysis of the judicial practice of the United States on the refusal of intellectual property rights
Regarding unilateral refusal of transactions in intellectual property licensing, the U.S. Judiciary has created a series of contradictory
Cases, from the absolute exemption of intellectual property rights from the anti-monopoly law to the "infrastructure theory" test, therefore,
Regarding the refusal of intellectual property rights, the U.S. judicial system has not yet formed a unified view.
Quan's preference occupies an advantageous position.
First, the position of absolute immunity. The courts in this position generally hold that the refusal of permission is inherent to the right holder.
right. For example, in In Heaton-Peninsular Button-Fastener Co.v. Eureka in 1896
In the Specialty Co. case, the court stated this as follows: ...a patentee has the right to make his invention
Or find that it is reserved for self-exercise... Its rights are exclusive and clear within the scope of the Constitution's provisions on private property
Therefore, he neither assumes the obligation to use the invention by himself, nor the obligation to license it to others...
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[124] In 1945, in the Hartford-Empire Co. v. Unite States case, the court held that the patent rightHe neither assumes the obligation to use the invention himself, nor the obligation to license it to others. [125] 1981
In the USv Westinghouse Elec.Corp case in 1999, the court was aware of the intellectual property and antitrust laws
The inner conflict between. ① The court ruled that: "There has never been a court claiming to cancel the patentee due to the anti-monopoly law
Based on the exclusive power possessed by its patent rights. ...Whether an exclusive license is granted or not is not restricted by the patentee
s right. " [126] opinions Kodak Ⅰ court case in 1979 as follows:" If a bear and R & D investment
Risky companies are required to share the benefits of their R&D activities with their competitors under all conditions.
Benefits, the incentives for innovation will be weakened to a large extent. " [127] this opinion in a subsequent SCM.Corp. V.
The Xerox Corp case has been adopted and explained: ② First, the core of the patentee’s statutory monopoly
The right backed by state power to prohibit others from using their inventions and creations without permission; second, through patents
For acts permitted by the law, the right holder can retain the monopoly status of the patent. [128]
Second, the position of almost absolute immunity. In the 2000 CUS v. Xerox Co. case, the Federal Patrol
The judgment returned to the court provides another similar way of substantive protection of intellectual property owners. Xerox is engaged in
For the involvement, manufacturing, sales and maintenance of copiers and printers, we refuse to directly report to independent service organizations includ
① The basic situation of the case is: the defendant Westinghouse signed an intellectual property license agreement with some companies selected by it, but refused toOther companies in the industry granted the same license. The U.S. government believes that the defendant Westinghouse sought a monopoly by refusing the license.File a lawsuit.② SCM is a competitor with Xerox in the copier market. Xerox refuses to license its patent on the core part of the copier to other systems.Manufacturer. SCM contends that Xerox's actions violated antitrust laws. The U.S. Court of Appeals for the Second Circuit held that the patentee’s 17-year patent protectionDuring the period, it unilaterally refused to issue licenses to its patents, and only exercised the right to exclude others from manufacturing, using, and selling its innovations. This behavior is clearIt is indeed protected by patent law. Therefore, the court held that Xerox's actions did not violate the provisions of the antitrust law.
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Accept sales of accessories, and only sell their accessories directly to authorized distributors and end users, but their users still
Can provide accessories to any maintenance organization. In 1994, as an independent service organization and end user
As part of the settlement of the lawsuit, Xerox changed its policy and agreed to sell directly to independent service organizations.
Accessories. CUS withdrew from this class action (which has been settled), and solely used Xerox to refuse to sell to it and license to receive exclusive righ
Lihe copyright-protected accessories, thereby trying to monopolize its copier and printer service market, violating the anti-monopoly law
Reason to file a lawsuit to the court. In this case, the Federal Circuit held that the patentee has the right to
Exclude others from manufacturing, using, or selling protected products or technologies, which is exempt from antitrust laws
Liability, unless it can be proved that the patentee belongs to one of the following situations: a. The patent was obtained through fraud; b.
The litigation is fraudulent (sham litigation), c illegal tying. After examining intellectual property and anti-monopoly
After the relationship between the law, the court reached a conclusion that is beneficial to intellectual property: “The common principles of patent law and
The point is: by granting the inventors exclusive rights, so as to motivate consumers in the long run
Innovative activities. There is an economic principle behind the provisions of Congress granting patents and copyrights:
To ensure personal interests, to maximize personal creativity in the fields of science, technology and art, thereby
Ultimately it is beneficial to the public interest. " [129] This conclusion means that if the patentee's patent is valid,
Therefore, the right holder’s refusal of permission will not constitute an illegal and exclusive act prohibited by the anti-monopoly law. Therefore, the right
Have the right to exclude competitors from the field protected by intellectual property rights, even if this exclusive act is really harmful to competition.
There was a shock. The intention (motive) of the right holder is irrelevant in the judgment of the legality of the exclusion behavior. ① This
A verdict was strongly criticized by Robert Phtofsky, the outgoing chairman of the Federal Trade Commission.
The court adopted the case against the patentee’s refusal to deal with this de facto expanded right for the purpose of restricting competition.
Lee’s practice of almost no restrictions is extremely worried. He believes that the Federal Circuit’s approach “seems to be
The protection of intellectual property" is placed above the antitrust law. It means that the owner of the intellectual property does not have to grant
The undeniable initial principle of licensing jumps to the unreasonable conclusion: intellectual property owners can choose to be licensed
Can be used to achieve anti-competitive purposes or impose conditions on the license (for example, requiring the licensee not to compete with the licensor
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Trade) in order to obtain anti-competitive effects. [130]
Third, presumption of legal position. In judicial practice, there are also some refusing to license intellectual property rights
The case adopted a position of rebuttable legality assumptions. In 1994, Data General v. Grumman
In the Systems Support Co. case② , the U.S. Court of Appeals for the First Circuit held that although exclusive behavior may include
① The court rejected the plaintiff’s act of denying permission to the defendant in the Kodak case.
Against the precedent of the anti-monopoly law, the court’s theory is that if a patent cannot be proved to be illegally obtained or used to gain monopoly power beyond the scope of rights,It will not lead to anti-monopoly law liability.② The basic facts of the case are: the defendant is an independent service organization (third party maintainer, referred to as TPM) that has a competitive relationship with the plaintiff, and the plaintiff is theThe computer manufacturer also provides a series of products and services for software maintenance. The plaintiff owns the software copyright. In the maintenance market, the plaintiff owns 90%The defendant owns about 3% of the market share. Over the years, in order to encourage the development of the independent maintenance market, the plaintiff has adopted a loose permitAccording to the policy, the defendant can freely obtain the maintenance software that the plaintiff owns the copyright. Later, in order to increase profits and expand market share, the plaintiff willAdvanced computer diagnostic software implements a strict licensing policy, only allowing its own technicians to use the service software, and only a small number of indoorThe technical staff grants permission to use. The defendant is a competitor of the plaintiff in the service market. As for the defendant, the plaintiff refused to give permission, so the defendant copied the originalThe plaintiff’s infringement lawsuit, and the defendant counterclaims that the plaintiff’s refusal to license is a monopoly or an attempt to monopolize the service market of the computer system.Field, in violation of the anti-monopoly law.
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Including the monopolist’s unilateral refusal to issue copyright licenses, but the author excludes the expectation of others to use copyrighted works,
Should be assumed to have. . . . . . . . Effective business legitimacy. . . . . . . (A presumptively valid business
justification). Although this may cause harm to consumers, it is
necessary. The court did not support the defendant's claim. [131] ① In the subsequent Tricom Inc. v. Electronic Data
In the System Corp case, the court also followed the principles of the Data Genera case, and a software company refused to
The competitor licenses its software copyright, and the latter needs the software to provide maintenance services. The court held that intellectual property
The right holder has never been obliged to grant permission to others, and the court held that this conclusion does not require knowledge
In-depth thinking about the relationship between intellectual property law and anti-monopoly law can only be based on intellectual property law. [132]
Fourth, the assumption of legitimacy that can be overturned by monopolistic intent. In the above-mentioned based on commercial legitimacy leads to
In the judicial logic of the presumption, the court did not specify the circumstances under which the presumption can be overturned. Ninth Circuit
The court’s decision in the Kodak case II explored this. The Kodak case II therefore became a
High-profile verdict. Kodak Company produces copiers and imaging devices and provides maintenance services for these equipment,
Since the early 1980s, independent service organizations (independent service organizations, hereinafter abbreviated as
Called ISOs) began to provide maintenance services for Kodak’s products, Image Technical Services is right
An independent service organization that provides services for the above-mentioned equipment. With the increasing competitiveness of ISOs in the mainten
The company decided to stop selling Kodak’s repair parts to ISOs and sign requirements with its parts manufacturers
Agreement not to trade with ISOs. With the implementation of this policy, ISOs cannot be
Do not give up the maintenance market for Kodak products. In 1987, ISOs filed a lawsuit in violation of Section 1 of the Sherman Act.
Article and Article 2 are grounds for requesting the mandatory cancellation of this policy. The U.S. District Court issued a summary judgment against Kod
It is believed that Kodak has a relatively small share in the related copier and imaging device market, so for Kodak copying
In terms of services provided by the aircraft, Kodak did not violate Article 2 of the Sherman Act. ②However , the United States
The Ninth Circuit Court of Appeals overturned this decision, and the US Supreme Court sent the case back for retrial. Remand in the case
After the trial, the district court found that Kodak's refusal to sell its patented components constituted a violation of the anti-monopoly law, and Image won
In the appeal, Kodak raised the issue of its patent rights, believing that, as the patentee, it refused to sell its patented products.
It is not illegal to sell to independent service organizations. The Ninth Circuit held that intellectual property owners are also subject to anti-monopoly regul
The fact that they possess valid intellectual property rights does not exempt the right holder from the anti-monopoly law. Court vs. Data
General v. Grumman Systems Support Co.'s falsehood regarding the commercial reasonableness of the refusal to permit
The view that it can be overturned in a specific context was brought into play, and the conclusion was reached: First, the patentee or
① In the latter part of the judgment (at 1187), the court further clarified the point: the judgment in this case does not mean that the antitrust law charges at any time
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None of this assumption can be overturned, but the obligation to impose anti-monopoly law on intellectual property can only occur in a very few cases, otherwise it may destroy knowledgeThe purpose of the property rights system. The original text is "there may be rare cases in which imposing antitrust liability is unlikelyto frustrate the objectives of the Copyright Act."② The plaintiff accused Kodak of violating Articles 1 and 2 of the Sherman Act. The U.S. District Court issued a summary judgment against Kodak and held that KodakThe market share of related copiers and imaging devices is relatively small, so for the services provided by Kodak copiers, Kodak did not violate the "Thank youThe provisions of Article 2 of the Erman Act. The Ninth Circuit overturned the judgment, and the Supreme Court issued a filing order for a retrial. Given that this section mainlyThe issue of denial of permission was discussed, and the relevant opinions were concentrated in the judgment of the Ninth Circuit. Therefore, the main body of the text mainly introduces the views of the Ninth Circuit.point. The Supreme Court’s judgment mainly focused on whether Article 1 of the Sherman Act was violated.
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Copyright owners are not exempted from responsibilities under the anti-monopoly law; secondly, exclusive acts include the refusal of permission by intelle
Third, the attempt of the intellectual property owner to exclude others within the scope of the protection of rights is assumed to be commercially reasonable
In Kodak’s refusal to sell the accessories used in the copier and imaging device to an independent service organization,
In defense of patent rights, the Ninth Circuit pointed out that the Kodak photocopier has thousands of parts but
Only 65 of these components have patent rights. On the grounds that these components have patent rights, they refuse to sell or license only
It was Kodak’s strategy of conspiring to monopolize, and it was only raised as a reason long after the refusal to sell happened.
And, therefore, based on the Supreme Court's observations on the behavior of tying Kodak ① , if the patent market and aftermarket heavy
But the service market is an independent market. The patentee refuses to license or sell for the purpose of controlling the service market.
The act of selling patented accessories is beyond the scope of patent authorization and cannot be protected. If the patent market
It includes not only the accessory market but also the service market. Kodak's actions are within the scope of patent protection. Book
In the case, accessories and services are an independent anti-monopoly market. Kodak provides patented accessories to other customers, but only
It refuses to provide to independent service organizations, and its purpose is to monopolize the service market. The Ninth Court held that whether it is know
Neither the property rights law nor the anti-monopoly law allows a monopolist to use commercial rationality to conceal the essence of anti-competitive beh
Therefore, Kodak's actions violated the antitrust law. [133]
Fifth, the theoretical position of infrastructure. This is the most severe position against intellectual property owners. In 1970
In the Poster Exch. Inc v. Nat'l Screen Serv. Corp case, the copyright owner refused to
Provide promotional materials and posters (protected by copyright), which the court found violated infrastructure theory.
[134] In Bellsouth Adv. & Publ'g corp v. Donnelley Info. Publ'g Inc.,
One of the points of contention is whether the infrastructure theory can be applied to the phone book. The court held that although the infrastructure theory
It has been applied to tangible objects, but it cannot be applied to the illegal containment of intellectual property rights without a reason. [135] In 1995
Montgomery County Ass'n of Realtors, Inc. v. Realty Photo Master Corp
In the case, the court also found that refusing to license the use of copyrighted real estate catalogs violated the theory of infrastructure.
②[136] The influential Intergraph Co. v. Intel Co. case also involves infrastructure theory, although
It was not fully adopted in the end. Intergraph is a graphics software developer, which aims to cooperate with Intel
The Clipper computer chip was abandoned, but this also locked Intergraph to Intel's technology. when
When Intergraph filed a threat of patent infringement against Intel, Intel asked both parties to cross-license, but was
Intergraph refused. Intel therefore refused to provide Intergraph with new chip technology information.
Intergraph sued the court for Intel's violation of antitrust laws. District Court Order Intel
Not to refuse to provide Intergraph with new chip technical information and ask it to treat Intergraph like Intergraph
Competitor deals with Intergraph like that. The district court determined Intel’s chip technology information as a “must
Therefore, “reasonable and timely access to key business information is necessary. "And Intel is
① The opinion pointed out: "Using certain natural and legal advantages, such as patents, copyrights, and commercial acumen, may lead to market powerAnti-monopoly legal liability. The condition is that the seller uses its dominant position in one market to expand its territory to another market. "AlthoughThis argument is made for tying, but it can be seen from this argument that the protected object in the knowledge market cannot be extended to the secondmarket.② However, in this case, the plaintiff failed to prove that the copyrighted real estate catalog was infrastructure.
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It is obliged not to act in a way that harms competition. Intel refuses to provide chip technology information
According to legal intellectual property rights, it has the obligation to engage in transactions. The court concluded: “Intel’s refusal violated
Law of Article 2 of the Sherman Act, because there are no alternative resources, and copying is not feasible, and cannot
Obtaining CPUs and key information prevents competitors from fully and effectively competing in the relevant market. "case
After appealing to the Federal Circuit Court of Appeals, the court overturned the district court's decision. Federal Circuit Court of Appeals
Believed that Intergraph did not prove that Intel’s actions were intended to enhance its competition in the microprocessor market
status. In addition, the court also pointed out that there is no precedent requiring Intel to provide chip technology information. area
The court held that Intel’s actions had anti-competitive intent, but did not see Intel and Intergraph
There is no competition between them. The final resolution of the case is: Intel promises not to refuse to announce in advance
In order to obtain a license for intellectual property rights from other companies, the court of first instance also recognized that Intel can issue
Refuse to provide advanced product information for legitimate business reasons, such as when a customer violates a confidentiality agreement, or
When Intel has implemented a general non-announcement policy. The Federal Circuit Court of Appeals also denied that "necessary facilities"
The theory is suitable for this case. It is believed that the necessary facilities theory is only suitable in the field where there is a competitive relationship wit
For example, the field of the facility itself or its vertical related field, the court cannot control the necessary facility
This theory applies to areas where people do not have a competitive relationship. Finally, the Court of Appeals for the Federal Circuit found that Intel did n
Need to bear anti-monopoly responsibility. [137] At the same time, the US Federal Trade Commission also filed an anti-monopoly against Intel
Investigation, accusing Intel of relying on its dominant position of close to 80% of the market share to provide key technical information
As a bargaining chip, other related manufacturers are required to agree to grant patents developed based on Intel microprocessors.
Right to Intel. The FTC requires Intel to abolish its and 3 manufacturers (Digital Equipment Corp.,
Intergraph Corp., CompaqComputer Corp.) information sharing agreement. The final result is FTC
Intel is prohibited from engaging in acts that refuse to provide information to customers or threaten it, and at the same time cannot refuse to sell
The microprocessor gives its existing customers or threatens it. [138]
4.2.2.2 Legislative analysis
In terms of legislation, Article 271d of the Patent Abuse Amendment Act of 1988 stipulates: “The patentee has the right to
Remedies for patent infringement shall not be granted because of the patentee... (4) Refusing to grant any rights to the patent
License or use, and refuse to provide relief or determine that it constitutes an abuse or illegal expansion of patent rights
open. ” ①②
Judging from the above judicial and legislation, the United States has a relatively relaxed attitude towards refusing to license intellectual property righ
It is not possible to prove that the intellectual property has constituted the necessary facilities, otherwise, regardless of whether the motivation for refusing
Gain a monopoly position, and whether it will cause an impact on competition in actual effects, will not necessarily lead to
The refusal of the property owner shall be held accountable for the anti-monopoly law. The main reason for this tendency is "because of its construction
① patent misuse reform act (PMRA), 1988, 35 USC271② However, there are controversies in theory and practice regarding this law. That is, the provisions of Article d provide an exemption from the antitrust law for the refusal of the license itself.
The statutory basis is still only for denial of permission that does not violate the anti-monopoly law.
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Based on solid property rights and a free market, the US patent system always grants patentees close to
Absolute freedom, can unilaterally decide whether to grant permission to others. " [12] If the denial of permission is severely
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Anti-monopoly regulations will inevitably result in a large number of compulsory licenses, and “there is no reason in American law.
The general terms of granting compulsory licenses without using patents... The fundamental reason for adopting this method lies in the United States
People's faith in the principles of free markets and distrust of government pricing. " [12]
4.2.3 Relevant legislation and judicial practice in the European Union
4.2.3.1 Cases of refusal to license traditional intellectual property types
The EU’s anti-monopoly regulations on refusal to license intellectual property rights are mainly based on Article 82 of the Rome Treaty.
Fixed: One or more companies abuse their dominant position in the common market or in a significant part of it, such as
If it is likely to affect trade between member states, it is considered incompatible with the common market and is prohibited. This kind of abuse
Mainly include: (a) Directly or indirectly impose unfair purchase or sales prices, or other unfair trade terms
(B) Restrict production, sales or technological development, thereby causing consumers to suffer damage; (c) For equivalent transactions
Other trading partners of China apply different conditions, which put them in an unfavorable competitive position;...
In terms of relevant judicial practice, the European Court of Justice and the Commission of the European Communities are more familiar with the fol
Judicial opinion and judgment structure of three cases, namely Renault case, Volvo case, Magill case, Ladbroke case
Case and IMS case.
The Volvo case. In the Volvo UK v. Eric Veng case, Volvo used its design rights to block
To stop Veng from importing Volvo auto parts, Veng argues that Volvo's refusal to license is an abuse of market dominance
the behavior of. The European Court of Justice held that the owner of the design rights prohibits third parties from making, selling or importing without per
It is the purpose of its exclusivity to import products that contain its design. If a design right is imposed
People are obliged to require them to grant rights to others (even if they obtain reasonable royalties) and to allow others to provide
The product containing the design will substantially deprive the right holder of the exclusive right. Therefore, the refusal of permission itself
Does not constitute an abuse of market dominance. However, in the following three cases, the owner of the car’s design
Making its exclusive right may constitute the abuse of market dominance referred to in Article 82 of the Rome Treaty: (1) Intellectual property
The right holder “arbitrarily” refused to provide accessories to independent repairers; (2) fixed the price of accessories
Set at an unreasonable or excessively high level; (3) Decided to stop production of a certain model that is still in use by many cars
Auto parts. It can be seen that although the European Court of Justice in this case recognized that intellectual property owners can exercise their rights,
Under certain circumstances, it may still constitute an abuse of market dominance. [139]
Magill case. The Magill case in 1995 is considered a classic case of refusal of permission. ①European Communist Party
A series of opinions on this case of the European Court of First Instance, the European Court of First Instance and the European Court of Justice are summ
① The Magill case is widely cited in related studies by Chinese scholars, so this article will not repeat the relevant case in the main text. In short, RTE is loveErland’s radio and television management agency, based on the authorization of the domestic law, is responsible for the editing of radio and television programs and has aHave copyright. There is a weekly magazine Magill that intends to publish the weekly TV program plan developed by RTE, but RTE refuses to grant copyright permission, and onlyIt is permitted to publish a 24-hour program schedule (48 hours on weekends). Therefore, Magill alleged that its refusal was an abuse of copyrightBrought dominance. The European Court of Justice confirmed this allegation and forced RTE to license its copyright to Magill.
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The following three points: (1) In principle, the copyright owner has the right to retain the exclusive right to copy his protected work, and this
The exercise of this right is not an abuse in itself. (2) Facing the accusation of Article 82(b) of the Rome Treaty, only possessing knowledge
Intellectual property rights are not justified reasons for exclusive behavior. There must be some other objective
Evidence of appropriate factors (such as untrustworthy, unsafe, etc.). Whether in a TV broadcast event or out
In the TV magazine activity, there is no legitimate reason for the TV station to refuse to license the TV program schedule to Magill.
reason. (3) Copyright monopoly shall not be improperly used to prevent a company with considerable potential consumer demand
The emergence of new products and the rejection of competitors in the relevant market. TV stations pass by being excluded from TV Guide Week
Publish all competition in the market to preserve the subsidiary market for themselves, because they refuse to let others
Basic information necessary for this kind of guide. In fact, they use the de facto
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Monopoly status (constitutes a necessary facility) to maintain the monopoly in the secondary subsidiary market. The court found three
A TV station because of its de facto monopoly on the judgment information on which the program is based and its copyright protection laws.
It has a monopoly and has a dominant position in the market of TV schedules and TV guides. under these circumstances,
The refusal of the TV station to issue a license to Magill is an abuse. The European Court of Justice specifically pointed out that the refusal to grant
Granting permission, even the refusal of permission by an enterprise in a dominant market position will not itself constitute a dominant market place
Bit abuse. Only in special circumstances, the exercise of such exclusive rights by intellectual property owners may constitute abuse.
Use behavior. This case belongs to this special situation (exceptional circumstances). [140] About Magill
During the trial, there was another opinion held by Advocate General Claus Gulmann. he
It is believed that RTE’s refusal did not violate Article 82 of the law, because the refusal to license is a component of copyright exclusivity
point. The reason why the refusal is denied by the court is that this refusal makes the essence of the intellectual achievement
The function has not been fully realized. Therefore, in this case, the maintenance of free competition is more important than the benefit to the right holders
Benefit protection. But this view of his was not accepted by the European Court of Justice. [16]
IMS case. ① The 2004 European Court of Justice’s judgment on the IMS case is considered to be a “long-awaited
① The basic facts of the IMS case are as follows: IMS Health Gmbh & Co. OHG (IMS) company is engaged inInvestigate the sales situation, make research reports, and sell these data to pharmaceutical factories, who of course need to know their own medicinesAnd the sales of others’ drugs in various regions of Germany. In this market, that is, the market that provides research reports, or "sales data"At the same time, IMS has a dominant position. This kind of research report adopts a kind of "brick structure" to display, while IMS adoptsIt is a brick structure composed of 1860 "bricks". According to German copyright law, this 1860 brick structure is a copyright-protected database.
IMS spent 30 years developing and perfecting this 1860 brick structure. It has used various methods to partition the German market. OpeningDuring the development process, IMS also invited various pharmaceutical factories to participate in its R&D team. These pharmaceutical factories are the buyers of this kind of materials and the customers of IMS. eachThe customer makes suggestions on how to partition based on their own needs. In the end, the German market is divided into 1860 “bricks”, which is based on customerOur opinion is definite. This structure obviously better meets the needs of customers. IMS sells these materials to pharmaceutical factories, and also to pharmacies and doctors.Health is provided free of charge, which ultimately makes this structure a de facto industry standard. Others want to understand the distribution of sales in the German pharmaceutical market.The situation must be based on this structure.
After a former manager of IMS resigned, he set up a company, Pharma Intranet (PI), and adopted another brick structure to provide thisHowever, users are accustomed to the 1860 brick structure and are unwilling to accept the information provided by PI. So PI changed to adopt a kind of 1860 tenSub-similar structure. IMS sued the Frankfurt District Court in Germany, accusing PI of infringement of its copyright. Later, PI was used by another companyAcquired by NDC Health Gmbh & Co. KG (NDC), IMS continues this lawsuit against NDC. The court first issued an injunction order, requestingNDC stopped its infringement.
After the injunction was made in the above-mentioned lawsuit, NDC requested IMS to grant a license to allow it to use the 1860 brick structure, and was willing to pay a license fee, butRejected by IMS. In order to fight against the above-mentioned infringement lawsuits in German courts, NDC filed with the Commission of the European Communities on December 19, 2000.A complaint was filed, alleging that IMS’s refusal of permission was an abuse of its dominant position and thus violated Article 82 of the Treaty of the European Communities. Committee in 2001Intermediate measures were taken in July 2008 to require IMS to grant licenses to all competitors (including NDC) to allow others to use its 1860 brick structure. IMS
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Long waited judgment” (long waited judgment), which clarifies the circumstances under which the act of refusing to license copyright
It can constitute an abuse of dominant position, well coordinated the relationship between copyright and competition law, and greatly strengthened
The certainty of competition law in this area. [141] The European Court of Justice in the analysis of the Magill and Bronner case ① was after
The conclusion is as follows: a company has a dominant position and also owns the intellectual property rights of the brick structure, and this kind of know
Property rights are indispensable for providing information on the regional sales of pharmaceutical products in a certain member state.
The industry refuses to permit another enterprise intending to provide similar information in the same Member State to use the structure. This refusal
If the following conditions are met, it constitutes an abuse within the meaning of Article 82 of the Treaty: (1) The enterprise requesting permission,
Intends to supply new products or new services that the intellectual property rights holders do not provide in the market that supplies this kind of informati
For this new product or new service, consumers have a potential demand; (2) There is no such refusal.
Objective and reasonable reasons; (3) This refusal will exclude
Some competition, so that this market dominates in the hands of intellectual property rights. "Professor Xu Guangyao's comments on the IMS case and rela
After analyzing the case, it is pointed out that the significance of the case is to clarify that the refusal of intellectual property rights constitutes abuse of dom
The many elements of position and the relationship between them, that is, the relationship between the elements is "and" instead of
"Or (or)" relationship. In the Magill case, RTE is compulsory licensing reasons and the case is exactly the same IMS ② ,
However, whether a refusal to license intellectual property rights meets one or all of the requirements
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The conforming party constituted an abuse of intellectual property rights, and the European Court of Justice did not give a clear explanation ③ . In the subseIn the case, although it was pointed out that the three requirements must be met at the same time ④ , but there were no intellectual property factors in the cas
Appealed to the European Court of First Instance, the European Court of First Instance issued an interim order to suspend the interim order of the Commission of the European Communities, and determined that IMS had denieThe behavior is not illegal. The European Court of Justice upheld the order of the European Court of First Instance with a final order. Later, the European Commission revoked its interim order.At the same time, the Frankfurt District Court of Germany is still hearing the infringement lawsuit filed by IMS against NDC. It believes that the core issue of this case isIt lies in whether the refusal of permission by IMS constitutes an abuse of dominant position. If it is not abusive, its copyright should be protected and NDC should stopStop infringement; if it constitutes abuse, IMS should be ordered to license its copyright, allowing its competitors (including NDC) to use 1860Brick structure. Unsure of this, the court decided to suspend its litigation. According to Article 234 of the Treaty of the European Communities, on three issues,Request the European Court of Justice to make a preliminary ruling. The European Court of Justice made a decision and answered these questions. This judgment is the aforementioned "long-awaited" judgmentDecided.① Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs-und Zeitschriftenverlag Gmbh & Co. KG andOther, C-7/97, [1998] ECR 1-7817. In the Oscar Bronner case, Mediaprint published two daily newspapers in Austria andIt is the only residential delivery business in the country. Bronner asked Mediaprint to provide delivery services to deliver its newspapers, but was refused. BronnerIt is said that Mediaprint is in a dominant position in the delivery business, and Mediaprint should provide this service to it. Austrian courts demand European lawThe court made an advance ruling on this case. The European Court of Justice believes that the condition for determining the abuse is that Bronner proves the following in the Austrian court:Will lead to the elimination of all Bronner’s competition in the daily newspaper market; there is no objective and reasonable reason for rejection; Mediaprint’s services areBronner's business operations are essential because there are no actual or potential substitutes. The European Court of Justice pointed out that this is not the case in this case.Although unsatisfactory, other ways of delivering newspapers still exist, and it is not impossible to establish a new delivery system. finally,The European Court of Justice held that Mediaprint did not constitute an abuse of market dominance. The contribution of this case to the IMS case lies in its contribution to the “essentiality”Analysis.②The reasons for the judgment are: (1) The refusal to grant a license prevents the emergence of a new product, and there is a potential consumer demand for this product; (2)
There is no reasonable reason for refusing to grant the license; (3) The intellectual property owner controls the secondary market by eliminating all competition in the secondary market.Hands.③ After the Magill case, whether the three conditions that constitute a violation of Article 82 are met at the same time or one of them is met.European scholars have different opinions. Rosa Greaves believes that it is sufficient to meet the essential requirements of intellectual property rights. Hedvig Schmidt andValentine Korah believes that all conditions must be met. In the IMS case, both parties in the dispute cited the Magill case as supporting arguments, which also reflectedDifferent views on the Magill case.④ (1) The refusal must be possible to eliminate all competition in the secondary market; (2) There is no reasonable reason for this refusal; (3) The requestFor the licensed person, the product or service is indispensable for their own activities, and there is no actual or potentialreplacement of.
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It cannot show the tension between the exclusivity of intellectual property rights and the policy of maintaining fair and free competition. so,
The IMS case established a clear criterion for refusal to license the abuse of dominance of intellectual property rights.
The internal logic of the above conclusion of the European Court of Justice lies in:
If the intellectual property owner is obliged to share his intellectual property rights with competitors, the intellectual property rights will
Essentially deprived. In this way, the intellectual property owner only has the economic right to collect royalties, which has played down
Intellectual property rights, and are inconsistent with the protection of intellectual property rights clearly stipulated in the Rome Treaty. Intellectual propert
A basic property right. Even for the purpose of protecting competition, the power to restrict this basic right is extremely
It's limited. That is, the exclusivity or monopoly of intellectual property rights is a manifestation of the essence of intellectual property rights, just like the E
As in Magill’s case: if there are no special circumstances. . . . . . . . . ① Even if an enterprise has market control. . . . . . . . . . . . .Status, refusal of permission by itself does not constitute an abuse of market dominance.. . . . . . . . . . . . . . . . . . . . . . Therefore, in addition to the adoption of refusal to deal with
In addition to the “essential” and “rejection without reasonable grounds” in the case of tangible goods or services, the
Absolutely license copyright, only if such denial of license prevents a new product. . . When entering the market, it is possible to give
Compulsory license. This new product should be different from the goods already provided by the intellectual property owner, and satisfy those existing
Products cannot meet the needs of special consumers who need them.
From the Magill case to the IMS case, we seem to be able to summarize the EU’s
Competition law policy: Tolerate the exclusivity and exclusivity of copyright to a certain extent, even if this kind of behavior is harmful to competition
It does have a negative impact, which is "essential" in order to maintain innovation. Refusal of permission in traditional copyright
Domain, because what copyright protects is the form of expression rather than the content, a situation where a certain copyright is indispensable for the ma
It’s rare, so the regulation of new product theory on the refusal of copyright license is the competition policy’s impact on the copyright system.
A kind of concession aimed at maintaining the copyright system’s incentives for innovation. A form of expression hinders new products
The situation is difficult to appear in reality. The Magill case is considered a special situation and its special features
That's it. As pointed out by Singaporean scholar Burton Ong, in the Magill and IMS case, one of the most
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The big difference is that in the Magill case, it was information that refused to allowTime arrangement, and in the IMS case, it was the copyright itself (a database structure) that was refused permission, not the information
(Business data) itself. [142]
4.2.3.2 Cases of denial of permission in the new economy industry
In another branch of the copyright field, that is, software copyright protection, it has been difficult to define whether it is to express
Formal protection is still content protection, and because the software industry has a typical network effect,
The software standards of the leading enterprises are of great significance to the entire industry. If copyrights in this field are rejected
Absolutely permit the application of the new product theory, it may actually tolerate the abuse of the dominant position. Therefore, in
In the regulation of software copyright refusal, the EU has implemented stricter regulations on the refusal of licensing.
① The special case in the Magill case is that the refusal to license prevents a product with potential customer demand from entering the market. In that case, withDominant companies cannot monopolize the raw materials that are indispensable for market entry and competition.
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In the IBM case [143] in 1984, the Commission of the European Communities considered that ① through the refusal to supply non-IBM mainframes
Software, IBM is believed to illegally disadvantage competitors who sell non-IBM mainframes. Commissioner of the European Community
It is believed that by delaying the disclosure of interface information on IBM’s new products, IBM has formed an artificial advantage and refused
Absolutely provide competitors with opportunities to adapt their products to new IBM products. Therefore, the committee ruled that IBM should disclose
Its secret know-how about interface passwords has enabled potential competitors to produce compatible hardware products. ②
On September 17, 2007, the European Court of First Instance issued the first-instance ruling in the form of televised: Rejected
Microsoft’s appeal was upheld and the European Commission’s 2004 penalty decision was upheld, which read: Microsoft
Relying on its dominant position in the field of personal computer operating systems to suppress competitors in other markets, in addition to
Microsoft is required to provide the WINDOWS operating system version without its own media player and to the server
Competitors in the software industry opened up compatible technical information and imposed a huge fine of 497 million euros.
one. Immediately after the European Commission announced on the 22nd, Microsoft Corporation of the United States had agreed to fully implement the EU
The anti-monopoly penalty decision made. Nellie Klers Smit, Commissioner for Competition Affairs of the European Commission
Said that she welcomed Microsoft’s final decision and said that the European Union would pay close attention to Microsoft.
Performance. She said that Microsoft has agreed to comply with the European Commission’s 2004 decision, in accordance with reasonable and reasonable
Non-discriminatory conditions open "complete and accurate" technical information to competitors in the server industry so that it
Our software products are "fully compatible" with the Microsoft Windows operating system. [144]
The EU's antitrust regulations against Microsoft include regulations on Microsoft's refusal to license. EU refers to
Controlling Microsoft’s Windows is only compatible with Microsoft’s own server software, which impairs the use of Linux or Unix operations.
As a competitor of the system, refuse to provide "interoperability" information to its competitors, that is, refuse to allow the information to be used.
To develop and sell products that compete with Microsoft’s own products in the workstation server operating system market,
Constitutes an abuse of a dominant position. Regarding this verdict, scholars commented that it was more a verdict on Microsoft’s case rather than
It constitutes guidance in a general sense. [145]
The EU’s harsh attitude towards software copyright refusal to license illustrates the intellectual property rights in the field of information technology.
Infrastructure theory (essentiality) has greater applicability and is not limited to situations where new products are provided.
This approach reflects the European Union’s tendency to weaken software copyright protection to a certain extent:
The instructions allow reverse engineering and analysis of the software, allowing people to use any part of the software
Determine the ideas and principles of the company, or facilitate the acquisition of the necessary information to realize the independent production of compu
Compatible with each other. ③
In general, in the EU’s intellectual property licensing, the tendency to apply infrastructure theory is lower than that of the United States.
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Obviously, this is mainly because the EU’s refusal of intellectual property rights is regulated by the nature of abuse of dominant position.① In this case, IBM’s tying behavior was also regulated: The Commission of the European Communities considered that IBM unnecessarily tying two software products to the mainThe machine product is abusive.② This result contrasts with the results of the US antitrust case against IBM during the same period. The U.S. Department of Justice has filed a complaint against IBM for up to 13In the antitrust lawsuit in 2009, the case was eventually withdrawn. Among them, regarding the compatibility of IBM's accessory equipment with computers manufactured by other companies,At first, the Ministry of Justice required IBM to announce its technical modifications to the interface in advance, but this request was rejected on the grounds that IBM was not obliged to support the competition.Competing manufacturer. See USvIBM Corp., 687 F.2d 591 (2 nd Cir. 1982)③ See EC Directive 91/250 on the Legal Protection of Computer Programmes, 14 May 1991, OJL 122/42
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The prerequisite is that the person who refuses the licensor already has a dominant position. In the EU, once an enterprise is found to have
“Dominant position” has “special responsibility”, and non-dominant enterprises do not have to assume
Take this "special responsibility" to establish a competitive legal order that is beneficial to SMEs. [146] The other party
On the other hand, Europe’s pursuit of a unified market also makes its competition
Take a stern attitude. [147]
4.2.4 Relevant legislation in Japan
The Anti-Monopoly in Patent and Know-how Licensing Agreement formulated by the Fair Trade Commission of Japan in 1999
The Law Guide analyzes the issue of patent refusal from the perspective of prohibiting private monopoly. The guidelines are in its Principles Department
Points out that the exercise of rights (exercise of rights) is exempt from antitrust law, unless this
Exercising violates the purpose of the intellectual property system. Therefore, in Japan, anti-monopoly on intellectual property licensing
Judicial sanctions are either because this behavior does not belong to the exercise of intellectual property rights, or the right to exercise
The behavior of profit is contrary to the purpose of the intellectual property system. Refusal of permission is analyzed from this perspective.
Article 3, Paragraph 1 of Part 3 of the Guidelines stipulates that if the dominant enterprise’s refusal to
The exclusion of potential competitors or the obstruction of the actual function of existing competitors is considered to be a violation of the law and anti-m
Ruling. Paragraph 2 stipulates the regulation of refusal to license in the case of patent accumulation. Operators obtain patents and transfer
A patent or the acceptance of a patent exclusive license does not in itself create a problem of private exclusiveness. However, in some cases,
A certain operator will obtain a patent related to a certain product even if he does not use it, but also obtain it from other operators.
Collect it up. If you cannot obtain the license for these accumulated patents, it will be difficult to operate in the product field
In the case of circumstance, in order to exclude new operators from joining, the patentee refuses to license the patent to a third party, or
Filing a patent infringement lawsuit, excluding or controlling the business activities of other companies
Competition in the market produces substantial restrictions, which should be regarded as the prohibition of illegal private monopolies under the Monopoly
for. Clause 3 stipulates that when a certain intellectual property rights constitutes an industry technical standard, that is, if its intellectual property rights are
If it is important enough for actual and potential competitors, it may be considered as a “necessary facility”. Refusing the permit would violate
The provisions of the Anti-Monopoly Law.
4.2.5 Anti-monopoly law analysis of intellectual property refusal to license
4.2.5.1 Anti-competitive effects of permission refusal
Refusal of permission will hinder the production or entry of competitors, thereby inhibiting competition and innovation. By denying permission,
Intellectual property owners can easily use their exclusive privileges to prevent competitors from entering or expanding.
First of all, if the patent application and grant policies are relatively loose, there will be various
Patents, forming the so-called patent thorns, those innovative companies will be more vulnerable to patent infringement,
This phenomenon is most prominent in the fields of semiconductors, biological products and computer software. Correspondingly, in a
In a market where one or more companies control the necessary patents for the production of a certain product, if a competitor cannot obtain a patent
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License, it is impossible to produce substitutes for the patented product, which causes competitors to either obtain a license or return
Out of the market.
Secondly, in the case of the establishment of industry standards, it will also lead to such a result. Some standards include "nuclear
“Heart patent” refers to the patented technology that is indispensable to the technical standard. The technical standard can be divided into factual standard.
Standard and formal standards, the former can be divided into the factual standards of exclusive monopoly and the standards established by enterprise allia
Among the de facto standards of domestic monopoly, the refusal of permission has in fact become the enterprise preventing competitors from entering the m
Large-scale market strategy, so most standardization organizations require participants to agree to external licenses, and
In addition, considering the anti-monopoly law sanctions on fixed prices, it is generally not allowed to stipulate unreasonable clauses in the license.
If the license fee is too high, it may lead to fair use of the intellectual property rights. But we still
It can be imagined that there is a situation in which the right holder charges royalties that have a deterrent effect, making competition
Once the user has paid the usage fee, he will not be able to obtain a reasonable expected profit, and this behavior will produce a similar rejection
Effect of permission. Therefore, in industries with network externalities, the setting of standards may lead to anti-competitive
Contentious. ①
Finally, Jonathan Baker in the model of the Arrow ② come to the field of intellectual property rationalization argument
Anti-competitive effects of refusal to license. He is concerned about the situation: in a certain market, the dominant enterprise and its
Fringe (fringe) competitors either form alliances or mutually produce and sell complementary products.
There are many ways to distribute companies—for example, denying permission—to inhibit innovation by their competitors, or to co-operate with the com
In an alliance, the dominant enterprise can threaten its partner company by ending the alliance relationship, thereby limiting complementarity
Entry of products. Dominant companies can also reduce the intensity of competition through product incompatibility. [148] Actually,
Microsoft's competitive strategy in the computer software market is manifested in the above ways one by one.
4.2.5.2 The constitutive elements of intellectual property refusal to license constitute abuse
First, the subject who refuses to license has a monopoly position. Article 2 of the US Sherman Act and EU Rome
The biggest difference in Article 82 of the Treaty is: Article 2 of the Sherman Act is about attempting to monopolize or abuse of monopoly position.
What is the actual effect of anti-competitive behavior (such as refusing permission) on the relevant market, that is, anti-competitive
Behavior will lead to how much dominance the company has in the relevant market, and Article 82 of the European Union, because it is defined as
Abuse of the monopoly position, so the premise is that the person who refuses the licensor has already obtained the monopoly position.
The refusal to license the intellectual property rights may constitute abuse. Indeed, mandatory trading limits to some extent
The market subject’s trading freedom, and this freedom cannot be arbitrarily reduced. In this sense, the
As a prerequisite, the determination of the allocation status effectively ensures that only those who can distort market competition through refusal to deal
Enterprises in the competition mechanism are obliged to compulsory transactions. [149]
This article believes that because the requirement for compulsory license does weaken the exclusivity of intellectual property owners to a certain exte
Some scholars even believe that it is the destruction and erosion of the nature of intellectual property rights. Therefore, only for companies with a dominan
① For the monopoly analysis of technical standards combined with intellectual property rights, please refer to Chapter 5 of this article.② Arrow model shows that in a competitive market, companies have stronger incentives for innovation.
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This obligation is an effective check and balance on the market power of the enterprise. In terms of determining the dominant position,
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This article believes that in the licensing of intellectual property rights, the important role of the current economic development derived from intellectual pr
It is the network effect and other factors in the new economy industry. To judge the existence of a dominant position, in addition to examining the market
Traditional standards, such as share, should take into account the barriers to entry caused by factors such as network economic effects, as well as the
The exclusivity of intellectual property rights brings the company’s ability to implement exclusionary behaviors to increase market entry barriers, as follow
Several factors are to judge the dominant market position of the enterprise in the regulation of intellectual property licensing and implement stricter standar
Important indicators of anti-monopoly regulations: (1) Refusing to license intellectual property rights in industries with network effects;
(2) When the intellectual property rights owned by the dominant enterprise involve key facilities, or because of knowledge about infrastructure
When property rights have gained a dominant position, the possibility of conversely inhibiting innovation is greatly increased, and strict regulations should
(3) Intellectual property that refuses to license has become an industry standard. To some extent, industry standards and key
The two concepts of facilities are quite closely related: that is, technical standards must constitute key facilities, but key facilities do not
They must all be expressed as technical standards. ① But in terms of measuring whether it constitutes a dominant position, the meaning of the competition l
Similarly, and the technological standards protected by intellectual property rights give enterprises a stronger dominant position, and correspondingly
For the refusal of intellectual property rights in this situation, the company should implement stricter anti-monopoly regulations
system.
Second, the indispensability of intellectual property rights as the subject of licensing. In the intellectual property license, judge the rejection
Whether the licensed intellectual property is indispensable, the following ideas can be followed: First, whether the intellectual property
It is included in the industry standard or considered to be a key facility of the industry. If an intellectual property is included in the industry
Technical standards may be considered as key facilities. In industries with network effects, this intellectual property is often
Indispensable for entering the industry. In an industry where there is no network effect, it is necessary to analyze whether the industry’s standards
Is the only one, or there are other similar standards at the same time. Secondly, there must be no need for different types of intellectual property rights
The feasibility is demonstrated separately. Intellectual property rights that can exert economic monopoly on the market are often manifested as patents, cop
It is software copyright technology) and proprietary technology and trade secrets. As intellectual property law has different types of knowledge
The intensity of legal protection provided by property rights varies. Therefore, intellectual property rights do create a situation of economic monopoly pow
Under the circumstances, the anti-competitive effects caused by their refusal to license are also different, and the degree of strictness of the regulation is als
Third, there is no reasonable reason for rejection. Inquiry’s reasonable grounds for denying permission are actually
Reverse reference to Article 2 of Mann Law’s Monopoly Intent. In the U.S. judicial practice, there are
①There are also the following differences between key facilities and technical standards: First, the standard can be a technology in a well-known field, while intellectual property rights are exclusive.
The two pursue different goals. For the initiator of the standard, the pursuit of openness and universality, while the pursuit of private property and exclusivity of intellectual property. standardOnce formed, it will bring a monopoly to the enterprise, and the standard can be made public and not owned by any enterprise. This is often for the initiators of the standard.More favorable. The intellectual property rights owned by key facilities often need to be kept secret by the enterprise. Once it is made public, the dominant position of the enterprise will disappear.Second, the owner is different. The owner of a standard can be multiple enterprises, and the subject of intellectual property is often one enterprise. Again, the use of the twoIt is used in different ways. Generally speaking, public standards do not require authorization and can be used freely. For certain standards with intellectual property rights, initiateIn order to expand their own network, they will also promote it for free. Intellectual property requires authorization. Anyone who wants to use intellectual property, unless otherwise stipulated by lawIn addition, the owner must obtain the permission of the owner and pay the usage fee according to the agreement between the two parties, otherwise it will constitute an infringement. Fourth, the content of the two is different.A standard may not contain intellectual property rights, but it may also contain thousands of intellectual property rights. The content contained in a standard is more than pure knowledgeProperty rights should be wide. Finally, the relationship with the economic effect of the network is different. Standards are closely related to the economic effects of the network, and standards may be affected by the economic Should be formed, the network economy effect can also be produced because a certain technology is expected to be the future standard. And for key facilities owning intellectual property rights is notIt will certainly bring about network economic effects.
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A basic presumption: commercial rationality. Simply put, it means that companies are not obligated to transfer their knowledge
The property rights are licensed to its competitors, thus eliminating the technological advantage gained by the technology. This is not in line with the econo
The economic man assumptions in economics do not conform to realistic business rationality, and the denied licensee must provide evidence to overturn
The commercial rationality proves the monopolistic intent of the refusal and produces a distortion of competition.
This article believes that if the aforementioned two conditions are met, the intellectual property owner must bear the burden of proof
Ren, in turn, prove the commercial rationality of the refusal. This element is "essential." Because
It can effectively eliminate the worries of opponents of anti-monopoly laws and regulations on the refusal of intellectual property rights, and make knowled
The property owner will not be "robbed" because of the low license fee. ① In addition to the unreasonable reduction of license fees, allow
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Keren can also claim other defenses, such as objective and reasonable defenses, which the enterprise can prove, but the license cannot show
They have a good business reputation, so they cannot guarantee that they can fulfill their obligations or guarantee the quality of intellectual property produc
quality. "In the element of judging reasonable grounds for refusal, whether the two parties have the original permission relationship is an important factor.
To be standard. Generally speaking, the commercial rationality defense should be
Subject to stricter and in-depth anti-monopoly law review. Because if the two parties have ever had a permission relationship, then one party is interrupted
The permission (ie refusal of permission) can often indicate the intention to monopolize the market through the refusal. Especially when you have
In the industry of network effects, some companies often promote their
Technical solutions for intellectual property protection, waiting for the technology to be widely recognized by the market and a high market share
Later (that is, after the market is locked), the license is refused again, thus dominating the technology market and related product (service) market.
field.
4.2.6 Suggestions for anti-monopoly legislation on the refusal of intellectual property rights in my country
4.2.6.1 Status Quo Analysis
With the establishment of the World Trade Organization, official trade barriers are gradually eliminated. Economic globalization and the world marke
The process of integration is accelerating, but at the same time, the international market is facing the threat of private companies restricting competition.
Threatened. As far as my country is concerned, after my country’s "WTO" accession, foreign products, technologies, capital, services, etc. will become mo
Many places have entered the Chinese market. In fact, some industries in our country have formed
A situation controlled by large multinational companies with strong economic power. Some multinational companies in terms of capital and technology
Compared with my country’s domestic enterprises, it has a great advantage, so it is easy to gain a dominant position in my country’s market or
Monopoly. If they engage in behaviors that abuse their dominant market position on the Chinese market, or jointly restrict competition
Disputes, or inappropriate mergers and acquisitions of Chinese enterprises, will have an adverse impact on the order of competition in our country.
It will also have a serious impact on our national economy. Among them, Microsoft’s anti-competitiveness in the Chinese market
The negative impact of behavior on the interests of Chinese consumers and the development of my country’s software industry has long aroused people’s c
① Scholars who object to imposing mandatory authorization obligations on intellectual property owners who refuse to authorize believe that in this case, the exchange of the intellectual property rights in the marketThe price of easy access and the number of people buying the intellectual property rights will therefore be reduced. The authorized person will even force the right holder to accept the authorization fee that he deliberately deprAmount, and has a similar robbery effect on intellectual property owners. See Chen Zhimin, The present and future of antitrust predatory behavior-the new economyThinking under the system (2), Zhengda Law Review, No. 5, 2004 (82), p212
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Note; Cisco and Intel’s suppression of companies in the same industry in my country is also carried out in the name of intellectual property rights.
Yes, in terms of denial of permission, the Cisco v. Huawei case has aroused widespread concern, and the subsequent Intel v.
Although the Dongjin case was finally settled, it also involved the issue of denial of permission.
Huawei v. Cisco. On January 22, 2003, local time in the United States, the world’s largest manufacturer of network equipment
Cisco Systems and Cisco Technologies (hereinafter collectively referred to as "Cisco") in the Commonwealth of Marshall, Texas, USA
The district court challenged Huawei Technologies Co., Ltd., my country’s largest telecommunications equipment manufacturer, and its two subsidiaries in
Huawei and FutureWei Technologies (hereinafter collectively referred to as "Huawei") filed a lawsuit, accusing China
To infringe its intellectual property rights. In the 77-page indictment, Cisco accused Huawei of copying its command line interface.
Beiqi user documents, copy IOS source code, infringe its patent in the United States, adopt its term and model number,
It also filed as many as 21 litigation requests, covering knowledge from copyrights, patents, trademarks to unfair competition, etc.
Almost all categories of property rights. In March, Huawei completely refuted Cisco’s allegations and filed three counterclaims:
In order not to constitute infringement of Cisco's patents, the judgment of Cisco's patents is invalid and Cisco's unfair competition. At the same time, Huaw
It also filed an objection to the Cisco preliminary injunction motion to the court. [150]
Dongjin v. Intel. On January 20, 2006, the international IT giant Intel Corporation
People’s Court at the first level filed a lawsuit, claiming that Shenzhen Dongjin Communication Technology Co., Ltd. (hereinafter referred to as Dongjin) u
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The “header file” in Intel’s voice card software has developed a new product compatible with it, thus infringing on its work.
And claimed US$7.96 million from Dongjin Company;
Beijing Dongjin Company sued Intel for illegal technology monopoly and obstruction to the Beijing No. 1 Intermediate People’s Court
Progress—The first case of Chinese and foreign intellectual property rights in 2005 was thus formed. [151]
In addition, my country’s original "WAPI" wireless Internet access standard, which was originally scheduled to be enforced on June 1, 2004, has
The purpose is to protect the wireless LAN communication security of the country, industry, enterprise and individual users, and also to break the country.
The de facto monopoly of foreign companies smashes de facto standards and allows new technologies to survive and develop. But by
Intel, the CPU overlord, first stated that it does not support China’s “WAPI” standard, making this huge investment
Stranded aground. The biggest resistance to discrimination against WAPI is "technical boycott", that is, the refusal of transaction by intellectual property ow
problem. [152]
Judging from the above cases, the current acts of refusal to license intellectual property rights in my country have the following characteristics:
First, it mainly appears in the computer software industry. The computer software industry is a typical generation of the new economy industry
Table, with the basic characteristics of the new economy, such as network effects and lock-in effects. Computers frequently appear in our country
Software intellectual property disputes are in line with the current worldwide conflicts between intellectual property and anti-monopoly laws in this field.
trend. Since the 1980s, the United States and the European Union have been
The hardware production giant has conducted an anti-monopoly review. Although the conclusions reached are not consistent, they conducted an anti-mono
The facts themselves reflect that in this field, high-tech and new economic characteristics have an impact on both intellectual property law and anti-monopo
A new issue was raised, how the two legal systems deal with this challenge
Various countries are constantly exploring the complex and changeable relationship. The results of exploration often depend on a country (region)
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District) legal culture, historical background, industrial policy and status in the international economic structure. Therefore, before
In this article, we can see that the United States’ regulations have also become stronger in the review of Microsoft’s and Intel’s anti-monopoly laws.
It's getting looser and the EU is the opposite. Therefore, our country is carrying out the anti-monopoly law legislation and judicial process in this field.
China, it should also take China’s specific conditions as the background, and should not blindly imitate foreign countries, especially developed countries.
Established rules and methods, but should explore the laws and principles behind the rules, so as to establish a
Anti-monopoly regulations.
Second, the intellectual property owners who refuse to license are often foreign companies or have foreign investment backgrounds. Whether it is bef
The computer software industry in the case mentioned is still a traditional intellectual property industry, such as pharmaceuticals. Currently,
From an international perspective, the subjects with advanced intellectual property protection are mostly enterprises from developed countries, especially
multinational. From an international perspective, multinational companies and their home countries (usually developed countries) insist that only more
Only a high level of intellectual property protection can provide sufficient R&D incentives to promote the advancement of human science and technology.
Therefore, higher protection standards should be implemented globally to prevent some countries from gaining
Unreasonable competitive advantage. The TRIPs agreement is a product of this position. At the individual level, transnational
The company itself implements a competitive strategy based on intellectual property rights.
Patents, trademarks, and painstakingly managed know-how, trade secrets, etc., have been formed and consolidated in China
Very strong technology monopoly position. According to statistics, since the 1990s, multinational companies have applied for patents in China.
The amount of requests is increasing at an average annual rate of 30%. Among them, Japanese companies have applied for the most patents in China, follow
It is the United States and South Korea. These patent applications are of high level, especially in high-tech fields, such as e-mail
The core technologies in the fields of information, biomedicine, and new materials are all in the hands of a few multinational companies.
A few multinational companies such as Qualcomm, Nokia and Siemens have mastered more than 80% of the communications patented technology. [153]
Third, intellectual property rights that refuse to license often manifest themselves as industry standards, especially de facto standards. If right
A refusal of permission is subject to anti-monopoly regulations, which means that this behavior has a negative impact on competition.
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ring. And this consequence is often not produced by simply refusing permission. As for monopolistic enterprises
The anti-monopoly law review is the same as the anti-monopoly law review. Only the knowledge that the market monopoly power is actually formed
The refusal to license the property rights may have an adverse impact on market competition, and such intellectual property rights often appear as
A technical solution or idea that has become an industry standard (whether it is a formal standard or a de facto standard). When the intellectual property
The right to appear as a technical standard is that if it is a formal standard, because most of it stipulates a reasonable licensing policy,
General refusal to license does not occur ① , but if it is the de facto standard, especially the monopoly de facto standard,
Based on the private rights of intellectual property rights, intellectual property owners often form or strengthen the industry by refusing to grant licenses.
monopoly. For example, in the Cisco case, while Cisco adopted a "private agreement" ② , it did not permit any other enterprise
① But it does not mean that other distorting competition will not occur.② A private agreement refers to a company that established relevant standards and specifications for the interconnection of communication networks by international or national standardization organizations.Due to the early entry into the market, a set of standards has been formed by itself. In other words, the private agreement has not been reviewed, adopted,Approval is a non-statutory and de facto standard with the characteristics of closure and monopoly. It is essentially a standard developed and adopted within the enterprise.Unless authorized, other companies generally have no right to use the agreement. This is in contrast to international standards or national standards that must be open even if intellectual property rights are involved.The licensable situation is significantly different. Since it is formulated by the enterprise itself, its main purpose and purpose is to be among the equipment produced by the enterprise itself.Use, the implementation details and key content of the agreement are not disclosed and authorized to the outside world. Improper use can easily lead to unfair competition and closed markets. If one
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Prevent the interconnection and intercommunication of equipment of different enterprises, establish technical and market barriers, and use them in the bidd
It is difficult for its competitors to form substantial competition with it. Cisco has gradually gained
And further maintained and strengthened its market monopoly position, squeezing out the actual competition in the relevant market.
4.2.6.2 Existing legislation
Article 17 of the anti-monopoly law recently promulgated by our country stipulates: Prohibit operators with dominant market positions from
The following acts of abuse of market dominance: ... (3) Refusing to deal with the counterparty without a valid reason
Trading;……. The “dominant market position” mentioned in this law refers to the fact that the operator has the ability to control
Commodity prices, quantities or other trading conditions, or can hinder or affect other operators’ entry into the relevant market
Market position of field capacity. Article 18: The determination that an operator has a dominant market position shall be based on the following reasons
Factors: (1) The market share of the operator in the relevant market and the competition in the relevant market; (2)
The operator’s ability to control the sales market or the raw material procurement market; (3) The operator’s financial and technical capabilities
Technical conditions; (4) the degree of dependence of other business operators on the business’s transactions; (5) other business operators
The degree of difficulty in entering the relevant market; (6) Other factors related to the determination of the operator’s dominant market position.
The above provisions provide a statutory basis for the refusal of intellectual property rights from a legislative perspective.
The outline provisions based on the basic principles of the dominance of anti-monopoly laws and regulations are in line with the specific
Legislative features of uncertainty. But from the perspective of the application and enforcement of the law, relevant implementation rules are needed
Or the guide can strengthen its operability and coordinate the anti-monopoly law with other related laws and regulations.
Regarding the refusal of intellectual property rights, the relationship between anti-monopoly law and intellectual property law should be coordinated.
4.2.6.3 Legislative suggestions on anti-monopoly regulations regarding the refusal of intellectual property rights
Regarding the anti-monopoly laws and regulations that refuse to license intellectual property rights, my country can apply the knowledge of the secon
In addition to the various constituent elements clarified in the analysis of the conditions for the abuse of property rights refusal to license, it can also be bas
And the specific application is analyzed as follows
First, the basic position. In the field of intellectual property licensing, as a technology importing country, China faces the most
The big challenge is: On the one hand, the globalization of the economy makes Chinese companies unable to stand still, but must consider
Consider the worldwide industry technical standards; on the other hand, multinational companies that master the industry standards
It can exclude Chinese companies from entering relevant markets to compete with them. Therefore, since the beginning of reform and opening up, my coun
The technology introduction policy of "market for technology", however, the implementation effect of this policy has proven to be a departure from
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To put it simply, our country has opened up the market, or even surrendered the market, but it has not been exchanged for everything.The desired technology. Therefore, my country is currently vigorously advocating the development of technologies with independent intellectual property r
Enterprises have become a passive situation for multinational processing plants. However, the development of technology—especially high-tech—
The development is cumulative. Coupled with the network effect of the new economic industry, the so-called "independent intellectual property rights" tech
There are a large number of "private protocols" on this communication network. Once the current network or users use it, it will form a dependence on the protocol, which will result in later accessManufacturers must provide equipment that uses this private protocol to be able to interconnect with the original equipment that already exists in the network. Otherwise, theBen could not have the opportunity to enter the current network.
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Must be compatible with existing technical standards in the industry ① , in order to (service) market in the prior art market and products
Competition on the field, therefore, the licensing of related intellectual property rights is always a must. On the other hand, with
The entry into force of the TPIPs agreement and the influence of various international political and economic factors, my country has completed the
It has become an intellectual property legal system established in developed countries for more than two hundred years. As a result, some scholars believe t
Intellectual property legislation and law enforcement restrict themselves and expand administrative power, improperly increasing the competition of multin
Advantages have suppressed domestic enterprises. What is more, China has over-committed and enforced extremely high intellectual property rights.
Standards should protect the interests of domestic enterprises more. Regarding whether my country’s current intellectual property protection standards
Excessive discussion, although it is a topic closely related to this article, will not be discussed here. The key points of this article. . . . . .Note that under the above-mentioned reality and legislative background, the. . . . . . . . . . . . . . . . . . . . . . Strict anti-monopoly regulations should be adopted. . . . . . . . . . . . .Stance, that is, after the implementation of the anti-monopoly law, strengthen the anti-monopoly law enforcement agency’s review of the refusal of permiss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .And regulations, effectively preventing multinational companies from using intellectual property strategies to monopolize the market and obtain monopoly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . exist.In the anti-monopoly law enforcement against the refusal of intellectual property rights, maintaining the openness of the market and fair competition should. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The goal is to increase consumer welfare as the ultimate value orientation.. . . . . . . . . . . . . . . . . . . . .
Second, the intensity of anti-monopoly laws and regulations can be applied to different types of intellectual property rights. As in this article
It has been repeatedly emphasized: a distinction must be made between the statutory monopoly of intellectual property rights and the monopoly status in th
On the one hand, although most intellectual property rights have statutory monopoly power, in reality, they will not cause any impact on the market.
Economic monopoly status, the anti-monopoly regulation of intellectual property rights is concerned with the fact that it can cause market monopoly.
The exercise of that part of the intellectual property rights in a state of discontinuation, so as to prevent its abuse from negatively affecting competition. on
Those intellectual property rights that can create economic monopoly power, if they want to abuse their monopoly power, indeed rely on it.
The exclusionary effect caused by the statutory monopoly of intellectual property rights. Therefore, the different types of intellectual property
Protection of the same scope and intensity is an important consideration for measuring the negative impact of a certain intellectual property abuse on comp
Factors to determine the degree of involvement of the corresponding anti-monopoly law. For example, when comparing patents and traditional copyrights,
Intellectual property law provides the strongest protection. As British scholars pointed out, copyright is different from patent.
It is because patents provide an absolute monopoly, while copyright protection is limited to the copying of works. [154] Therefore,
Because of its exclusivity and combining with factors such as technical standards, it has the strongest market monopoly, and it refuses to license it
Is more anti-competitive, and therefore should be subject to stricter anti-monopoly law responsibilities. For traditional copyright, because the protected
It only protects expression rather than ideas. Therefore, the refusal of copyright is regarded as an abuse of intellectual property rights.
The higher constitutive elements should be applied to the responsibility of monopoly law.
Third, the regulations on the refusal of intellectual property rights in the new economy industry are more stringent. In the new economy industry
Intellectual property rights are mainly embodied in patents, copyrights, know-how, and trade secrets. These exclusive rights are incompatible with tradition
Intellectual property rights are the same. However, due to the network effect, lock-in effect, and winner’s all
And other industrial characteristics, the statutory monopoly of intellectual property in the new economy has gained unprecedented power, even
Evolve into economic monopoly power. Therefore, the anti-monopoly laws and regulations on intellectual property in the new economy industry are in a ce
①Of course, this article does not deny that with the development of technology, a brand-new technology completely overthrows and subverts the situation of existing technology, such as the replacement of CD players
Tape recorder.
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The degree of regulation is stricter than that of the traditional
It should be. The following discussion takes the representative of the new economy industry-computer software-as an example.
Intellectual property protection of computer software and anti-monopoly laws and regulations are both theoretically and practically controversial.
In the field, most of the abuse of intellectual property rights in my country also occurs in this industry. In the aforementioned EU Microsoft Corporation
In the verdict, the European Commission and the court of first instance both ruled that Microsoft refused to provide relevant information to competitors in t
Related technical information, resulting in software developed by competitors unable to operate with Microsoft Windows.
The operating system is fully compatible with the abuse of dominant position, and it is ordered to be opened to competitors in the server software industry
Compatible technical information. However, the United States has a different view on the decision of the European Union.
Barnett said: “We are concerned that this standard will be applied to unilateral acts of the EU court of first instance and will not be able to help
Help consumers, which may inhibit innovation and harm competition, leading to a bad result that is harming consumer interests.
[155] The reason why the European Union and the United States have dealt with Microsoft—in fact, the results of the anti-monopoly law on IBM as early as the
Difference-whether the refusal constitutes an abuse of dominance is different, except that national interest factors arise in it
In addition to its role, it also shows different attitudes towards the protection and restriction of intellectual property rights of computer software. Generally
The computer software industry presents the following characteristics: First, the software industry is an industry with strong network effects.
Secondly, innovation in the software industry has its own unique features. Technological innovation in the software field is usually in the existing
"Incremental advance" on the technical level, and at the same time, software product updates
The replacement speed is quite fast, the technological progress is small, the inter-generational difference of products is not obvious, and the quantity chang
There are everywhere, but qualitative changes rarely occur. It can be compared to "small steps and fast running." [156] In this case, the original
Both horizontal and vertical compatibility of software are more important, which can actually promote the innovation of the software industry.
Provide consumers with more and better products. The current open source movement in the software industry is a reaction to this requirement.
reflect.
This article believes that, on the one hand, the protection of software copyright and trade secrets is justified, and it is for developers.
The necessary return on R&D costs, however, based on the above analysis, anti-monopoly should be implemented for the refusal of software copyright.
The basic goal of breaking laws and regulations should be to maintain an open market, specifically, to maintain a standard plan.
The openness of computer software, especially system software. The openness here means that the software of the leading standard should be kept full
Sub-compatible interface allows other software to access, and unconditionally opens the interface completely, the system software should be kept
Greater freedom of access. Countermeasures should be implemented for leading software standard vendors to take measures to prevent entry into compatib
Monopoly punishment. In 2003, Sun sued Microsoft for deliberately preventing Sun’s Java platform from parity with Microsoft’s Windows.
In the case of Taiwan compatibility and interoperability, a US court ruled in favor of Sun. The verdict read: "Although Microsoft false
The installation supports to achieve compatibility, but the company deliberately took measures to make this goal unachievable. "The verdict also judged
Microsoft must include Java in its windows, and must avoid the "invalidation,
Uninstallation, replacement or any weakening of functions". This case represents the legal tendency to protect the openness of software standards. [79]
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4.3 Anti-monopoly legislation on price discrimination clauses in intellectual property licensing
4.3.1 Definition of anti-monopoly law on price discrimination clauses in intellectual property licensing
4.3.1.1 Price Discrimination Clauses in Antitrust Law
Price discrimination is a common economic phenomenon in social production and life.
Meaning: price discrimination is differential treatment in terms of price. Refers to the seller’s purchase of the same grade and same quality
The buyer of the goods asks to pay a different price, or the buyer is
The seller pays different prices, so that the seller of the same product has different selling prices or the buyer has different purchase prices.
Access to different trading opportunities due to different qualifications directly affects the fair competition between them. Moreover, the same kind
The different wholesale prices of products will directly affect the retail prices, and the different retail prices will directly affect the interests of consumers.
beneficial. Therefore, price competition not only affects market competition, but also affects the interests of consumers. [111]
The economics community has also made more in-depth research on the phenomenon of price discrimination, and generally takes a neutral position.
As some scholars point out, price discrimination refers to companies asking for different prices when selling the same product to different customers.
Or, depending on the size of their purchases, different prices will be offered to customers. [157] Stigler proposed a more precise
Thought: "When two or more similar products are sold, if the ratio of price to marginal cost is not equal, then
There is price discrimination. " [113] Meanwhile, the economic motivation for enterprises to implement price discrimination were concise points
Analysis: Price discrimination is a way for enterprises to possess all the surplus of consumers (assuming that first-level discrimination is achieved)
Seek a market strategy that maximizes profits. On the basis of a certain market power, companies target different consumption
Different consumer's demand, not at each other arbitrage ① for different prices on different markets, in order to get the most
Big operating profit. Economics generally believes that pure price discrimination can maximize the realization of producer surplus.
Surplus, and is conducive to the promotion of social welfare. ②There is a dispute over whether price discrimination can improve consumer welfare.
Discussions have also led to disputes regarding the attitude towards price discrimination in the anti-monopoly law. Therefore, there are no anti-monopoly la
There is a rigid stipulation that price discrimination is bound to be illegal, but it is judged from its consequences, if its consequences substantially harm
Competition is considered illegal.
4.3.1.2 The particularity of price discrimination clauses in intellectual property licensing
The price discrimination in the licensing of intellectual property is usually manifested as a problem of discriminatory rates, that is, the same
① Refers to the process of buying an item at a low price in one market and selling it at a high price in another market in order to profit from the price difference.② The pure price discrimination here often refers to the first-level discrimination among the three levels of price discrimination made by Pigou in the 1920s. The three levels of discriminationDon’t mean the first type of price discrimination is the way that the seller’s asking price per unit of the buyer is equal to the unit’s maximum willingness to pay.Asking for different prices for goods is also called complete price discrimination. The second type of price discrimination means that the difference in price depends on the quantity of goods purchased.Instead of relying on consumers, this phenomenon is also known as non-linear pricing. Each consumer faces the same price list, but this list is for different purchases.There are different prices for the quantity. The third type of price discrimination is that different buyers are asked for different prices, but each buyer is required to purchase each unit of goods.Seeking to pay a constant amount, which is the most common form of price discrimination. Price discrimination also needs to meet different conditions. Among them, first-level price discrimination requiresIt is required that the implementer can fully understand the preferences of individual consumers; secondary price discrimination (quantity discount) requires consumers to be different in demand patterns,For example, some people buy a large amount, some people buy a small amount, and the product will be repeatedly purchased in a short period of time; three-level price discrimination requires manufacturers to easily distinguiConsumers with different attributes must be produced, and the elasticity of demand of these consumers with different attributes must be different.
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A technology license charges different licensees different royalties. In addition to the price
In addition to the universality of discrimination, there are some unique characteristics.
First, the protection of intellectual property rights is more beneficial to the realization of price discrimination than other commodities. Enterprises rea
An important prerequisite for viewing is the prevention of arbitrage. Because in the case of high and low prices, such as
Therefore, it cannot prevent the buyer who bought the product at a lower price from reselling the product to the buyer who is willing to buy it at a higher pr
In the case of profit from this, that is, this part of the surplus is obtained by arbitrageurs, and the company will not implement price discrimination. therefor
Companies that implement price discrimination often take various measures to prevent arbitrage, such as adulteration and invalidation of warranty
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Agreement etc. In intellectual property licensing, due to the exclusive protection features of intellectual property, the licensor canBy clearly stipulating the permitted content of rights, the field of use, and the region, it is ensured that arbitrage is eliminated. example
For example, for a patented method of a drug, the licensor can clearly stipulate that the method can only be used in the production of human drugs.
It cannot be used for the production of veterinary drugs, although the technical scheme is completely consistent in the specific production of drugs.
of. There are often clauses prohibiting parallel imports in intellectual property licensing, which can also be used to ensure that the licensor does not
Realize price discrimination in the same region.
Second, the price discrimination of intellectual property is closely related to tying, refusing to license, and so on. Actually, beauty
Many scholars in China believe that tying in the field of intellectual property licensing is to achieve price discrimination. Ruguang
In the well-known IBM tying case, when IBM rents out its monopolistic machines, it restricts its hirers
You must purchase a locating device card from it. The more frequently the renter uses the machine, the more reserved the rental price of the machine
high. IBM knows how often users use the machine based on the number of sales of locating device cards.
Set different prices for different frequencies in order to obtain the profit of price discrimination. [158] In refusing to license intellectual property
Field, some scholars have pointed out, Xerox and Kodak case case ① , the defendant's actions are by aftermarket
The monopoly of maintenance services realizes price discrimination. [159]
Third, the price discrimination of intellectual property has its particularity in cost analysis. Price discrimination is often reflected in two
There are two forms: one is horizontal price discrimination, that is, predatory pricing is used to squeeze out horizontal competitors; the other is
The price restrictions on its vertical customers have resulted in unequal competitive positions among its customers. No matter what
Price discrimination, a favorable defense reason is cost defense. Such as the United States "Robin
Section 2(a) of the Sun-Patman Act stipulates that “this provision does not apply to those who are
Different reasonable subsidies. "That is to say, in reality, the difference in the selling price of the same product may be
Because sellers pay different supply costs for different buyers, such as a hardback and paperback of a book
difference between. However, in intellectual property licensing, defenses based on the above costs are almost non-existent or difficult
Metering. As Professor Jay Dratler pointed out; “Pure price plundering purely for intellectual property licensing does not exist.
Here I am. The case law only contains price-discrimination predation, which is mainly regional. This precedent rule is just
It implies that different pricing for similar consumers may be illegal at some point, and it does not imply any
The license price is too “low”. [12] The reason for this phenomenon is obvious: the technology of intellectual property licensing
① Refer to CUS v. Xerox Co. 203 F. 3d 1322 (Fed. Cir. 2000) and Image Technical Services v. Eastman respectivelyKodak Co. 125 F. 3d 1195 (9th Cir. 1997) two cases, please refer to section 4.2.2 of this article on the refusal of intellectual property rights for the specific case.
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Most of them have high R&D costs and marginal costs close to zero. Therefore, the use of cost theory has actually changed
It's impossible.
Fourth, the complicated licensing terms in intellectual property licensing agreements make it very difficult to compare "same commodities".
It is generally believed that one of the prerequisites for price discrimination is to treat the same commodity (same commodity) as different
Sell to different consumers at the same price. ①In the licensing of intellectual property rights, it is assumed that the license terms are regarded as a kind of co
However, in practice, the licensing of a technology often contains a variety of preconditions: for example, whether the licensor is righteous or not.
Provide technical assistance and guidance, grant-back clauses, areas of use, etc., all of which may lead to significant licensing fees.
Difference, but whether it constitutes price discrimination is another matter. For example, there are cases in the United States that have been judged to be th
When lowering the royalties in a package license to obtain a patent grant back, it refuses to grant it in a single patent license
When giving back the price reduction, his refusal does not constitute royalty discrimination. [12]
4.3.2. The U.S. and EU's anti-monopoly regulations on price discrimination clauses in intellectual property licensing
4.3.2.1 Relevant legislation and practice in the United States
The U.S. Antitrust Law’s price discrimination is mainly reflected in the "Clays
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The Dayton Act and the Robinson-Patman Act and the Sherman Act in general regulation. Clayton Act 2 packContains provisions prohibiting price discrimination. The article stipulates: "Anyone who engages in commercial activities, in that commercial activity,
Directly or indirectly discriminate against buyers of goods of similar grade and quality, ... if discrimination can be
Can substantially weaken competition or form a monopoly in any commercial field, or damage, destroy, or prevent the buyer from interacting with
Competition between anyone who grants or intends to obtain the benefit of price discrimination, or competition between buyers, is considered
Illegal behavior, the discrimination involved here is the purchase of goods in the commercial process for the purpose of being in the United States, territorie
Use, consumption or sale in Columbia, or territories under the jurisdiction of the United States and other territories. "With
The later Robinson-Patman Act also has similar provisions. ②
Since the above regulations originated from the protection of small and medium-sized enterprises and the recognition of economic democracy during
As the economic background changes, it is believed that price discrimination should be deregulated and valued to promote the overall efficiency of society
His economic stance has had a great impact on the relevant judicial practice in the United States. According to the U.S. Department of Justice’s 1976
The "Robinson-Patman Act" research report believes that price discrimination should cause competitors and consumers
Damages must meet the following conditions: (1) The low price for large companies does not apply to all customers; (2) Large companies
With its market advantage, the company can reduce the price of the product to the point where it can eliminate small competitive companies; (3) Excellent
After the powerful enterprises eliminate small enterprises, they raise the price to the level of monopoly prices; (4) This level of monopoly prices
Can last a long time. [113] Since the 1980s, the U.S. Department of Justice and the Federal Trade Commission have basically
In the case of not handling price discrimination, theorists have been calling for the abolition of the Robinson-Patman Act. so,
At present, the United States basically no longer adopts its own illegal principle for price discrimination.
① Of course, selling different commodities to different buyers at the same price may also constitute price discrimination.② In fact, this bill is an amendment to Article 2 of the Clayton Act, which extends the impact of price discrimination from primary damage to secondary damage. YesStrengthened anti-monopoly laws and regulations against price discrimination.
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Articles 1 and 2 are respectively applicable to the provisions of price discrimination in the Sherman Act. According to Article 1, the referred
Controlled price discrimination refers to a collusion between a manufacturer and a certain distributor, by offering a low price to the distributor,
Merchants can gain an advantageous position in the competition with other issuers. Price discrimination alleged under Article 2 is often
That is to try to monopolize through predatory pricing. Since the Sherman Act is an effect clause, there is a discrepancy in price
Visual regulations must prove to have actual anti-competitive effects.
In terms of anti-monopoly laws and regulations in intellectual property licensing, the first issue that must be resolved is:
The Clayton Act and the Robinson-Patman Act of price discrimination are both about the regulation of the sale of commodities, and
The subject of intellectual property licensing is intangible property, which raises questions about the applicability of relevant laws. Judicial Practice
Indicates that if it is a pure technology license (such as a production license), the above two laws do not apply, and if it is a technology license
May be accompanied by the transfer of tangible property (such as software sales), which is determined by examining the "main nature of the transaction"
Is it applicable? For example, the First Circuit analyzed in SCM v. Xerox in 1975: If the tenant himself
Provide paper, and calculate the cost based on the number of copies. The rental and licensed use of copiers shall not be subject to the "Clay
If the paper is provided by the lessor, the law is more likely to be applied. [160]
The most representative case in related judicial practice is Laitram Corp. v. King Crab, Inc. in 1965.
[161] case (generally referred to as the case of the machine for removing shrimp shells in our academic circles). In this case, the patentee owns a shrimp shellin
The patent, licenses it to shrimp processors, and leases related equipment at the same time.
The weight is charged for rent. Because the shrimp in the Northwest is only half the size of the shrimp in the Gulf of Mexico, the patentee
It is believed that obtaining the same amount of shelled shrimp requires double use of the machine. Therefore, the patentee’s
The rental rate per pound of shelled shrimp received by small shrimp processors in the district is the same as that required by small shrimp processors in th
Pay twice the rent. At the same time, the patentee has his own factory in the Gulf of Mexico Processing Zone. West
The tenant in the northern region believes that the double rate and the fact that the patentee owns the factory are combined to violate
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Antitrust laws, thereby refusing to pay all royalties. Patent holder filed a patent lawsuit, Alaska
The court held that it constituted an abuse of the patent right and refused to exercise the patent right unless the right holder waived the discriminatory rate.
A similar case is the LaPeyre v. FTC case the following year. [162]
The basis for the judgment in the above case is that the patentee uses different royalty rates to exclude competitors in the same industry.
Competition, so constitutes patent abuse. But scholars questioned this: the patentee used his own
Does creating an invention to gain a competitive advantage for oneself constitutes patent abuse? And compared to not permitting, permitting the
Patents do increase labor productivity. The court did not investigate the market effect, but found that such behavior is natural
Land is discriminatory and has anti-competitive effects. This is very doubtful. [163] Scholars pointed out that in
In the Laitram case, the defendant’s competitive disadvantage stemmed from the stripping caused by the small size of shrimp in the northwestern region.
The natural factor of low shell productivity, in other words, even if there is no difference in usage rates, it is still in
Favorable status. Therefore, it cannot be considered that price discrimination has led to competition. Because the patentee is not obliged to
In order to maintain fair competition between it and its competitors and obliterate its own resource advantages.
In general, the United States has a relaxed attitude towards price discrimination in intellectual property licensing. On the one hand,
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It’s because price discrimination in licensing is difficult to define. On the other hand, it is believed that in order to stimulate innovation, intellectual propert
It is justified for the right holder to use price discrimination to maximize revenue, unless such behavior has caused a significant impact on competition.
The harm.
4.3.2.2 Relevant legislation and practice in the European Union
According to Article 82(c) of the Treaty of Rome, one or more companies abuse their market dominance
Position, “impose different conditions on the same transaction with other trading parties, thereby placing it in a disadvantaged competitive position
It is an abusive behavior. It can be seen that the provisions on price discrimination in the Treaty of Rome only apply to “same transactions”.
(Equivalent transactions)". The EU’s regulation of price discrimination is characterized by: First, the European
The Union regards price discrimination as a form of abuse of a dominant position, that is, only the discriminatory behavior of a dominant actor
Weifang is concerned by the anti-monopoly law. Second, pay attention to the negative impact of discriminatory behavior on market competition. European
The price discrimination under the anti-monopoly law is called exclusive rebate (also called loyalty rebate). The main purpose of this behavior is
What is tied to buyers is to make it impossible to buy products from other suppliers, or to reduce
The quantity purchased from other suppliers, thus excluding these competing suppliers and even expelling them from the market.
Like the United States, the European Union’s regulations on price discrimination are mainly applicable to commodity trade.
Licensing is generally not included in the scope of regulation. For technology licenses that include the transfer of goods, it may be applicable
The provisions of Article 82(c) above, but the premise is an abuse of a dominant position.
It’s worth noting that in the EU competition law’s regulation of price discrimination, the most controversial issue is the
The price discrimination of patented medicines and parallel imports. The European Community Competition Law will always unify the big market’s
Establishment and maintenance are regarded as one of the goals, but due to the specific protection scope and content of the intellectual property system of v
Inconsistency may result in a patent protected in one country not being protected in another country. At the same time, the manufacturer’s
In order to pursue greater profits, it is also possible to adopt different price strategies in different countries (within the community).
This leads to price differences in different markets. As mentioned earlier, the pursuit of profit maximization through price discrimination
One of the prerequisites is to effectively prevent arbitrage. In the
The prevention of imports is a necessary means to prevent arbitrage. However, the prevention of parallel imports is often regarded as
The segmentation and obstacles of the same body market are regulated by the competition law.
For example, in the Merck v Primecrown case in 1996, the EC Advocate General
It is recommended to support patent holders to prevent unauthorized parallel import of patented products from other countries in the Community,
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But this proposal was rejected by the European Court of Justice. [164] In the GSK (GlaxoSmithKline) case in Greece in 2003In China, the EC Advocate General once again proposed that GSK refuses to
The seller's act of supplying patented products does not constitute an abuse of dominant position, even if it has a dominant market position. [165]
Regarding the policy of opposing parallel imports caused by the maintenance of a unified market for the European Community, European scholars pr
Criticized opinions. Dermot Glynn pointed out that for patented drugs, the patentee’s prevention of parallel imports is
Realize the prerequisite for price discrimination, and price discrimination—although it falls within the scope of Article 82 dominance abuse—and
It is not illegal per se, but is subject to analysis by the principle of reason. In the pharmaceutical industry, price discrimination is generally beneficial.
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In high-income countries, high prices (higher prices) is due to the constraints of buyer power, ① does not become too high,
In low-income countries (lower prices), the price itself is lower, which is also beneficial to consumers. Place
Therefore, he believes that price discrimination will increase the market value of patents, which will stimulate R&D investment. [165]
However, some scholars have pointed out that restrictions on parallel imports will prevent the free flow of goods in the European unified market.
Moreover, the refusal of supply by the dominant enterprise has led to the anti-competitive effect of market exclusion, and ② it is also detrimental to the welf
Harmful. [166] In its 2006 judgment on GSK, the European Commission’s Competition Commission also held that: “The Commission does not consider the p
There is an inevitable link between the elimination of parallel imports and the increase in R&D investment. "Still insisting on denying parallel imports
position. [167]
4.3.3 Anti-monopoly Law Analysis of Price Discrimination Clauses in Intellectual Property Licensing
4.3.3.1 The positive effects of price discrimination clauses in intellectual property licensing
The use of price discrimination clauses in intellectual property licensing is effective most of the time, and has positive effects.
The socio-economic significance of:
First, it has increased the incentives for innovation without increasing social losses. Economists are often right
Price discrimination holds a preference, as David D. Friedman pointed out: Complete price discrimination has perfect efficiency.
[26] The U.S. Supreme Court also pointed out that price discrimination may reduce rather than increase sellers’ market power in the economy.
cost. [12] Therefore, price discrimination is beneficial from the perspective of overall social efficiency. At the same time, due to the price
Discrimination enables the licensor to maximize the market value of the technology, so it greatly stimulates social innovation.
New and creative activities.
Second, promote the greatest conversion of intellectual property rights into actual productivity. Stimulate through intellectual property
The ultimate goal of technological innovation is not just to stay in the laboratory or patent office data, but to pass
More advanced technology to increase productivity and increase economic efficiency. Therefore, to promote technological innovation to actual productivity
The transformation of intellectual property law and anti-monopoly law have in common in achieving efficiency goals. Through price discrimination, techno
Can be used to the greatest extent in production and life, so as to realize the conversion of productivity. Take the software industry as an example,
If you don’t consider Microsoft’s price discrimination to consolidate its dominant position, it will only bring software to life and production.
It is the price discrimination policy that makes society’s use of software universal, and vice versa.
The high price makes software only a luxury for the government and social elites.
The social impact is far less intense than it is today.
4.3.3.2 The harm of price discrimination clauses in intellectual property licensing to competition and efficiency
Price discrimination clauses may become monopolistic enterprises abusing their dominant position to exclude competitors and establish high barriers
s method. Generally speaking, as a company’s market strategy, price discrimination must be done in an advantageous market.
① Dermot Glynn pointed out that in the pharmaceutical industry, the buyers of drugs are often powerful insurance companies or relevant administrative agencies.With strong market power, it is able to negotiate on an equal status basis with theThe grid will not be too high.② This refers to the previous GSK case that GSK refused to supply its Greek sellers with drugs that exceeded the demand in the Greek domestic market.
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It can only be successful if it is implemented on the field, that is, there is no substitute product or the substitution is very weak. When an item is in competi
When selling on the market (that is, the product tends to be homogenized), price discrimination is impossible. Because in the competitive market there are
Many companies that sell the same item at market prices, none of them are willing to charge any customer a low price.
Price, because a company can sell all the items it wants to sell at market prices (that is, higher prices); and if
If any company wants to charge customers high prices, customers will buy from another company. Therefore, price discrimination
It only makes sense when the company has a dominant position.
The price discrimination policy is implemented when the intellectual property owner has a dominant position, which is in line with price discriminati
For the same reason, the harm to competition is mainly reflected in primary damage and secondary damage. Primary damage refers to
The situation in which actors in a dominant position use discriminatory policies to exclude competitors’ entry or competitive behavior, which harms the pu
A level of competition. ①Secondary damage refers to the fair competition of downstream companies due to price discrimination by upstream companies
Damage caused by the environment. In the field of intellectual property, due to the continuity of technology and related relevance, in a certain industry
Licensors with leading technology in the industry often lead to a certain licensee (downstream enterprise) to expand
The market position of the licensee, and the expansion of the market position of the licensee in turn ensures that the licensed technology is in the market.
Monopoly on the court. For example, the cooperation between Microsoft and Intel.
Through the harm to competition, the intellectual property rights holders’ realization of price discrimination licensing policies may also cause damag
damage. For example, the licensor uses predatory pricing and establishes an unbreakable license with the licensee (downstream enterprise).
However, it can effectively prevent new technologies from entering the market to participate in competition, which leads to the damage of innovation effici
4.3.3.3 The impact of price discrimination clauses in intellectual property licensing on consumer welfare
Intuitively speaking, since price discrimination means the conversion of consumer surplus to producer surplus, of course
Consumer welfare has a negative impact. But the actual situation is not so simple. First, based on insufficient information,
Complete price discrimination (that is, first-level discrimination) does not exist. In reality, it is often second- or third-level discrimination. like
As mentioned above, price discrimination helps increase the total output of society, while in the second or third level discrimination, economies of scale
Takes effect, the average cost and marginal cost decrease, and consumer welfare is based on sharing the surplus of the producer.
Benefits will increase further, and three-level price discrimination will bring welfare improvements to the low-income class. Secondly,
Price discrimination may lead to lower prices and thus benefit consumers. British economist Joan Robinson is right
The authoritative discussion on price discrimination pointed out that the output subject to price discrimination is more likely to be better than that without p
Depending on the output is greater. Therefore, compared with monopolistic enterprises setting uniform prices, consumer discrimination will promote comp
In order to keep old customers and develop new customers, a monopolistic enterprise will often give profits voluntarily, but this kind of accidental concessi
Will soon be known to other consumers, so other customers also get the same low price, the same price as the original
It broke down due to discrimination against consumers and showed lower prices. Not only increase consumer welfare, but
Increase market competition. Professor Adman described this process as a high-level driving force: "In modern industry
In the market, occasional and unsystematic price discrimination is a powerful competitive force. Like a strong wind, it
Seize the loopholes and cracks in the orderly price structure, and then break it. " [168] Therefore, it should be said price
① In the following analysis of Microsoft's price discrimination strategy in China, relevant examples can be seen, which are omitted here.
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The impact of the discrimination policy on consumer welfare is neutral, with both positive and negative factors.
Based on the above analysis, price discrimination in intellectual property licensing can only be used to prevent competition
It constitutes an abuse of rights only when a person enters the market or reduces product output, damaging innovation and overall welfare. otherwise,
It should not be restricted by competition law.
4.3.4 Suggestions on anti-monopoly legislation on price discrimination clauses in my country's intellectual property licensing
4.3.4.1 The impact of price discrimination in my country's intellectual property licensing from the case of Microsoft
Microsoft's price strategy in China is to analyze the use of price discrimination in my country's intellectual property licensing to restrict competition
The best interpretation. On the one hand, Microsoft used predatory prices to occupy my country’s software market;
The domestic market charges monopolistic high prices (compared to other regions).
In the early stage of Microsoft's entry into China, the so-called "water- and fish-breeding strategy" was implemented. With computers and mutual
Internet is becoming more and more popular in China, and Microsoft’s pirated software has also begun to increase in China.
When gaining a foothold in China, Microsoft turned a blind eye to the phenomenon of domestic piracy.
Allow. Because software has the particularity of high product input cost, but almost zero copy cost, sell more software
The marginal cost of software is almost zero, so the use of piracy to open up the market did not cause much damage to Microsoft.
Lost, but Microsoft’s pirated software caused an almost fatal impact on domestic software companies.
The famous domestic software Kingsoft quickly collapsed under the impact of Microsoft's massive piracy. ①In this way, Microsoft
The price of less than zero hits its competitors, occupying the domestic software market to the utmost extent. July 1999 United States
The words of Bill Gates in the cover article of "Fortune" vividly illustrate this point: "Although China’s annual
Brain sales are about 3 million units, but people don’t spend money on software. But one day, they will have to pay. only
If they want to steal, I hope they steal ours, they will be addicted. Therefore, we can calculate the next 10
How will we collect money on a certain day of the year. "
After the Microsoft operating system became the only choice for China’s personal computers, Microsoft adopted a high-level approach to the Chinese
Price discrimination policy. Microsoft’s current discriminatory policy against the Chinese market is manifested in two aspects: one is the system of legal so
Set prices higher than other countries and regions. For example, Windows98, which is priced at around US$100 abroad, is in China
The price is 1980 yuan; Office97 is about 300 US dollars abroad, and the price in China is 8760 yuan (Chinese
Professional version); Windows98 and Office2000 test versions presented abroad are priced at 188 in China.
Yuan and 200 yuan; at the same time, Microsoft followed the model of cooperation with Intel in the early stage of its development,
Adopt a license fee discrimination policy against different computer manufacturers pre-installed with Microsoft software. For example, Windows98 pre-ins
The license price of the software to IBM is US$10, but the price for major Chinese manufacturers is about 300 yuan, such as Lenovo, TCL,
Microsoft has established a relatively stable alliance with first-tier PC manufacturers such as Great Wall
Up to 690 yuan, and now the profit per PC is only in hundreds of yuan. [169] In fact, Microsoft passed the price
Discrimination to restrict competition is not an exclusive policy in China, and it is also in the antitrust case of the U.S. Department of Justice v. Microsoft.
① As previously made software WPS97 launch, Microsoft on an extremely low price WORD97 launched version, the WPS97 eventually be stifled, no
Law contends with it.
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It involves price discrimination. Judge Jackson’s ruling found that some of Microsoft’s discriminatory policies forced
IBM is unable to carry out technological innovation and business activities. The ruling stated that “for example, Microsoft’s charges for Windows systems
The above is not treated equally, there are illegal use of price sticks to deal with those computer companies that are not compliant". 2005
In July, Microsoft and IBM announced that they had
The disputes caused by the antitrust case of IBM will be settled, and IBM will receive 775 million US dollars from Microsoft.
Cash compensation and a US$75 million loan for the purchase of Microsoft’s software. [170]
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Microsoft’s behavior typically illustrates that in the process of technology introduction in my country, monopolistic companies use price discriminatioTo squeeze out competitors, and this is also the starting point of our country’s current anti-monopoly regulations on such behaviors.
4.3.4.2 Relevant legislation and improvement
my country’s current law clearly restricting price discrimination was promulgated in December 1997 and implemented in May of the following year.
The "Price Law" implemented, Article 14 of the law stipulates that "business operators shall not engage in the following improper price behaviors:... (2)
In addition to processing fresh and live products, seasonal products, and overstocked products in accordance with the law, in order to exclude competitors
Or monopolize the market, dump at a price below cost, disrupt the normal order of production and operation, and harm national interests.
Benefits or the legitimate rights and interests of other operators; ... (5) Operators providing the same goods or services shall not
Other operators with the same trading conditions implement price discrimination. In addition, in Article 11 of the Anti-Unfair Competition Law
It stipulates: "Operators shall not sell goods at prices below cost for the purpose of squeezing out opponents;..."
Article 17 of my country’s newly promulgated “Anti-Monopoly Law” stipulates: “It is forbidden for operators with dominant market positions to engage in
The following acts of abuse of market dominance:… (6) There is no justified reason, relative to transactions with the same conditions
People implement differential treatment in terms of transaction prices and other transaction conditions;... "
Under the above-mentioned legal background, anti-monopoly laws and regulations are implemented for price discrimination in intellectual property l
This article suggests that the following provisions can be made: First, the licensor has an advantageous position; second, it has a subjective advantage
The intention to force competitors to withdraw from the competitive market through the implementation of differential prices; third, the behavior itself rest
It may or has caused substantial damage to competition. In the case of meeting the above conditions, it shall be regarded as
The abuse of the dominant position is prohibited by the anti-monopoly law and compensation for damages.
4.4 Anti-monopoly legislation that does not challenge clauses in intellectual property licensing
4.4.1 The meaning of non-questioning clauses in intellectual property licensing
In technology licensing agreements, the licensor uses its own advantageous position and often requires the licensee to promise not to
To raise doubts about the validity of the licensed technology, and not to allow the licensee to raise disputes through litigation or other procedures.
Review the validity of the licensed technology, otherwise the licensee shall bear the corresponding liability for breach of contract. Such conventions are gen
The clause must not be challenged.
In addition to the non-questionable clause that may appear in the license agreement, there is another situation in practice where this
Possibility: In the settlement agreement, the parties may also agree not to raise the validity of the other party’s intellectual property rights.
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Questioned. The settlement agreement (also known as the non-claim agreement) is a technology licensing agreement similar to a patent pool.
The main purpose is to eliminate the obstruction of other parties’ intellectual property rights. Due to the interrelationship of the technology itself, it is possi
The current implementation of a technology must involve other people’s technologies that have obtained intellectual property rights. If there is a two-way b
In a relationship, it is easy for both parties to reach such a settlement agreement and tolerate each other’s "infringement" instead of advocating
Own intellectual property rights. Since this type of agreement is a solution caused by mutual blockade of intellectual property rights,
Therefore, the parties often agree not to question the validity of the other party's intellectual property rights. Due to the settlement agreement
The parties often have a competitive relationship. Therefore, in the settlement agreement,
Provisions etc. often also arouse the attention of anti-monopoly law. [171]
4.4.2 The United States and the European Union have anti-monopoly regulations on non-questioning clauses in intellectual property licen
4.4.2.1 Judicial practice in the United States
The United States does not have specific legislative sources for the anti-monopoly regulations that do not challenge clauses, including the
The Anti-Monopoly Guidelines in Intellectual Property Licensing also did not expressly prohibit this, but passed a series of judicial
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Practice to regulate.In the first half of the 20th century, the judicial practice in the United States generally supported the patent non-doubt clause in the license.
The reason is the general principle of law-estoppel is prohibited. As in 1950 Automatic Radio Manufacturing
In the case, the licensee (plaintiff)’s litigation request for invalidation of the patent was not supported because it
The previous license agreement has indicated the licensee's recognition of the patent.
However, as patents form monopolies regulated by the anti-monopoly law more and more often, the judicial
Estoppel is forbidden to raise questions about the legitimacy of such unfair clauses. Especially with the expansion of intellectual property rights in the U.S.
Trend, ① in the field of patents is reflected in a large number of invention patent does not meet the conditions for the creation of a patent is granted,
As a result, all walks of life in the United States began to pay attention to the anti-competitive effects of invalid patents and the damage to social welfare. E
Professor Mark A. Lemley, a well-known American intellectual property expert, pointed out through empirical analysis that about 46% of the
Patent is invalid patent. [172] In the context of this reality, the U.S. judiciary has
The anti-competitive effects that may be caused by the funds began to be regulated. As the U.S. Supreme Court once declared: "Just
Like the importance of protecting the monopoly of patentees of truly valuable inventions, it is important to the public
It is also very important that competition should not be inhibited by worthless patents. " [163]
In judicial practice, the most representative case recently is the Medlmmune case in 2005. Medlmmune is
The licensee and the plaintiff have signed a license agreement with Genentech that includes a non-questioning clause. The agreement
The subject matter includes a series of patents and patent applications. A few years later, Genentech obtained a patent in the agreement
Applied for the patent authorization, and notified Medlmmune that it used the newly obtained
① Since 1982, the U.S. Congress has made two adjustments to the operation of the patent system: the first is the establishment of a unified patent litigation system.The Federal Circuit Court of Appeals for the appeal process, followed by reforms to the Patent and Trademark Office (PTO)’s own fee structure and fundingIt becomes a service agency whose operating expenses are provided by the fees paid by the patent applicant. These reforms have prompted the United States to increasingly grant patents.Loose.
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Patented technology, so you must pay royalties, otherwise it constitutes infringement. Medlmmune denied that the product was used
The technology, but eventually paid a license fee. Subsequently, Medlmmune filed a lawsuit against the validity of the patent.
The district court refuted the lawsuit because it lacked subject matter jurisdiction.
Back, it is believed that according to the rules of the Federal Circuit, the licensee’s continuous payment behavior has excluded judicial control.
Jurisdiction. The Federal Circuit affirmed this ruling and held that the plaintiff’s payment behavior made it non-existent and was sued.
Prosecution of infringement. ① The Supreme Court of the United States asked the Federal Trade Commission to express its opinions as an amicus curiae on
(Brief), the opinion clearly expressed support for the plaintiff and believed that the plaintiff’s continued payment of user fees should not be hindered
Stop him from filing a lawsuit to confirm the validity of the patent. The opinion stated: “Considering the effect of invalid patents on competition and consu
It is in the public interest to challenge invalid patents to the extent permitted by the Constitution.
of. The licensee is usually the most motivated and able to challenge the validity of the patent, but because
Concerned about the litigation costs and compensation that may be caused by the violation of the license agreement, the licensee may be unwilling to
Therefore, a litigation environment that encourages licensees to raise questions should be established. " [173] for
In this case, the Chairman of the Federal Trade Commission Deborah Platt Majoras commented that the Medlmmune case
Promote the consideration of economic reality rather than just relying on the legal analysis of the patent licensing relationship
Stiff rules to judge trends.
The validity of the non-questioning clause in the settlement agreement has also been regulated by the U.S. judicial department.
In the Bayer case in 2001, the court held that Bayer and Barr Laboratories
Ciprofloxacin's patent settlement agreement violated antitrust laws. In this agreement, Bayer agreed to
Barr Laboratories and other manufacturers pay 100 million U.S. dollars on condition that Barr Laboratories, etc.
No longer question the validity of Bayer's patent and give up entering the market for the common antibiotic Ciprofloxaci. [163]
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In general, the United States currently has a negative attitude towards the non-doubt clause in the license agreement, which is in line with the United Related to the patent explosion phenomenon that has appeared in the 1980s, a large number of invalid patents have become a benefit to innovation and soci
The patent law alone is difficult to correct this trend. Therefore, the regulation of the anti-monopoly law
is required. [174]
4.4.2.2 EU legislation and judicial practice
In the European Community Regulation No. 772/2004, the non-questioning restriction on intellectual property licensing is in line with 240/96
The regulations are basically the same. Article 5, paragraph 1(c) of the non-exempt “restrictions on exclusion” stipulated in this regulation stipulates:
"Directly or indirectly require the licensee, not to have any intellectual property rights held in the common market
The validity is questioned. However, it can be stipulated that if the licensee questions the validity of the licensed technology, the technology
The technology transfer agreement was terminated. "Subsequently, the Commission of the European Communities in the 2004/C 101/02 guidelines on the a
The explanation is: the reason why the validity challenge clause is listed as the exclusion restriction clause is because the licensee is usually in a decision
The best position to determine whether intellectual property rights are effective, in order to ensure that competition is not distorted and intellectual property
① According to the judicial precedent of the Federal Circuit, the premise that a confirmation lawsuit is accepted is that the plaintiff has sufficient reasons to prove that it will be infringed by the defendant.The lawsuit.
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As a result, invalid intellectual property rights should be cancelled. Invalid intellectual property rights inhibit rather than promote innovation. When a certa
Technology is so valuable that companies that can’t use it or can only use it after paying for the use of it in the competition
When in a disadvantaged position, the license agreement restricts the licensee from questioning its validity, which may belong to Romania.
Circumstances stipulated in Article 81(1) of the Marathon Treaty. At the same time, the exemption conditions stipulated in Article 81(3) of the Treaty
It is unlikely to be satisfied. However, the Commission of the European Communities affirmed the non-questioning restriction clause in the know-how
Attitude, because once the proprietary technology is disclosed, it cannot be recycled or is difficult to recycle. In the proprietary technology licensing agreem
Require licensees not to question the licensed proprietary technology, which is conducive to the dissemination of new technologies, especially
When making a weak licensor license to a strong licensee, the licensor does not have to fear that the licensee will absorb the know-how
Question it again after the operation.
At the same time, the regulations and guidelines all involve the licensor when the licensee challenges the validity of intellectual property rights.
The issue of terminating the agreement. The licensee who challenged the subject matter of the license, the licensor was not forced to continue with
The obligation of the transaction. This means that if the licensor chooses to terminate the agreement, the licensee will continue to use it
Act at your own risk. The guide analyzes: “The purpose of Article 5 1(c) is to make the licensee
In the same position as the third person. "Because if there is no anti-monopoly regulation on this clause, the licensor will have
The right to bring an infringement lawsuit against the licensee’s challenge, and this will cause the licensee to be unwilling to challenge the licensor’s
The validity of the technique was questioned.
Regarding the validity challenge clause in the settlement agreement, the above-mentioned guidelines are more relaxed: “As long as the agreement do
Any core competition restriction listed in Article 4 of the TTBER can be exempted in batches. "" In reconciliation and disagreement
In the assertion agreement, it is generally believed that the non-questioning clause does not violate Article 81(1). Both parties agree not to agree
The subsequent questioning of intellectual property rights in China is inherent in this type of agreement. In fact, the purpose of the agreement is
It is to resolve existing disputes and/or avoid future disputes. "Obviously, what the EU refers to can be exempted in batches
The settlement agreement and its validity questioning clause are merely to simply resolve the situation of the hindrance of intellectual property rights.
The settlement agreement also includes core restrictions such as market division. The agreement and the non-questioning clause are both possible.
Not exempted. Chinese scholars believe that the above regulations of the European Union are more reasonable. On the one hand, do not question the clause
Because of its harm to competition, it is not possible to obtain a batch exemption. On the other hand, once a challenge is raised, the licensor is allowed
Termination of the contract, especially in the know-how contract, if the licensor does not have the right to terminate the contract, the licensor must contact
If the other party keeps entangled, it is necessary to prove that the rights are effective, which is not conducive to the protection of their secrets. [175]
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Among the large number of intellectual property licensing agreements dealt with by the Commission of the EuropeanThe basic opinion of the Community Committee is that it does not question that restriction is a restriction on competition because it hinders the licensee
The right to move freely. Regarding the non-questioning clause in the settlement agreement, a more typical case is Bayer v.
Sullhofer case. In this case, Bayer holds a patent for the production method and process, the content of which is similar to that of Sullhofer.
The content of a utility model and another patent application conflicted. Sullhofer v. Bayer violated its
For utility model patents, the latter counterclaimed that the former’s patent was invalid, and eventually the two reached a settlement agreement, thus termin
Litigation. The Competition Commission stated in its legal opinion on the case (submission) that the settlement agreement
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The no-question clause is subject to the review of Article 81 only when the four conditions are met: (1) Disputed intellectual property rights
The validity of the agreement is indeed uncertain; (2) There are no other restrictive clauses in the settlement agreement;
The disputed patent is related; (4) The settlement agreement leads to the end of the litigation before the judgment of the domestic court. However, Ou
The State Court denied the above view. The court pointed out in this case that the non-challenge clause in the settlement agreement should not be
Subject to a more relaxed review of cross-licensing, and the court pointed out that not questioning the restriction does not violate Article 81 of the Rome Tr
(1) Two cases: The first case is a license that does not charge royalties, because this license is not given to
The licensor brings a competitive disadvantage; another situation is that although royalty is charged, the technology is outdated. If skill
If the technique is new and a user fee is charged, the courts of the member states should determine the agreement based on the parties’ market status.
Whether it has substantially reduced market competition. [176]
4.4.3 Anti-monopoly law analysis of non-questioning clauses in intellectual property licensing
The two parties to the license contract may agree on a prohibition clause in two situations. One is that the licensor is at an advantage
He threatened to deny the license and forced the licensee to enter into the clause. Second, considering the conclusion of patent invalidation litigation
The risk of uncertainty and the high cost of both parties’ participation in invalidation litigation, the licensor and the licensee may
A compromise can be reached-the licensee exchanges a promise not to challenge the validity of the patent for a lower license price. In the first
In one case, the non-questioning clause not only harms the interests of the licensee, but also violates the encouragement of patent invalidation litigation.
In the second case, not questioning the clause is beneficial to both parties, but it still violates the public policy.
Therefore, the non-doubt clause must be regulated based on the public interest.
The most important basis for anti-monopoly regulations regarding the non-doubt clause in the license is to reduce invalidity.
Patent or know-how damages innovation, competition, and social efficiency.
An ideal intellectual property system is a system that achieves a balance between social cost and output, that is, technological progress,
The increase in economic efficiency brought about by innovation to society should be greater than or equal to the amount of money paid by society to respe
price. Therefore, in general, all countries will conduct non-obviousness, novelty, etc. on technologies protected by exclusive rights.
Wait for investigation to ensure that the exclusive rights granted can theoretically achieve an increase in efficiency. However, in reality
The granting of patents cannot really achieve this, especially under the current trend of intellectual property expansion, a large number of patents
The granting of profits is a common phenomenon in various countries, and its consequence is bound to be the emergence of a large number of invalid paten
The damages are as follows: First, invalid patents increase the cost of entering the relevant market and even hinder
Enter, due to the existence of invalid patents, the entrant must pay additional costs, otherwise it may face infringement.
Litigation; secondly, invalid patents affect innovation, and subsequent innovations must be carried out on the basis of previous technologies. Invalid patent
The existence of profit makes the cost of innovation higher; again, the existence of invalid patents has led to a significant increase in patent disputes.
Many invalid patents mean proprietary protection of some widely used technologies, which of course will lead to a large number of
Patent disputes. ①In short, invalid patents only mean an increase in social costs, thus causing consumer welfare
① The most ironic example is the "sandwich" patent infringement dispute that occurred in the United States in 2001.The US Patent No. 6004596 for "Sandwich without skin", and its patent abstract describes the scope of protection as: "The sandwich includes the lower partBread part, upper bread part, upper filling and lower filling between lower bread part and upper bread, enclosed in upper and lower parts
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The middle stuffing between the stuffing, the curved edge of the outer circumference of each part of the bread that seals the stuffing in the middle; the upper and lower stuffing are best made of peanuts
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damage.
Inhibiting invalid patents or other intellectual property protection, on the one hand, requires legislation and enforcement within the intellectual proper
Comprehensive implementation of various aspects, such as the implementation of stricter award standards, etc. On the other hand, other laws are also requi
Cooperate. The anti-monopoly regulation of non-questioning clauses is one of the most effective means. U.S. and EU
They all believe that whether a patent or proprietary technology should be invalid, the licensee is undoubtedly the most qualified and motivated
Proposed. ①On the one hand, by implementing the technology, the licensee can fully appreciate whether the technology really brings
Increase productivity or other benefits, and the licensee also has relevant expertise to judge the technology’s
Novelty, non-obviousness, etc.; on the other hand, once the patent is declared invalid, the licensee does not have to pay
License fees, this is undoubtedly a very powerful motivation. Therefore, as opposed to the third party, it is guaranteed that the licensee
The right to challenge is a powerful measure to suppress invalid patents.
Of course, protecting the licensee’s right to challenge the licensed technology does not mean that the licensee’s right to challenge can be
Abuse, because it will also have negative effects: first, the abuse of questioning rights will hinder the licensor from licensing externally
Technological enthusiasm. If the licensee abuses this right, it means that both parties can easily fall into lengthy and expensive
In disputes, regardless of the outcome, the licensor’s willingness to license externally will be greatly reduced.
In the licensing agreement, doubts will often cause the disclosure of technical secrets, which will greatly offset the active license of the right holder.
sex. According to the public product attributes of intellectual property rights, external licenses enable the technology to be widely used (even if an addition
Setting conditions) is better than not permitting anyway, which will help increase economic efficiency; second, abuse of the right to question will
This leads to an increase in social costs and ultimately to the loss of consumer welfare. In the United States, according to intellectual property lawyers
In the investigation conducted in 2000, the cost of defending large-scale patent disputes (with a risk of more than US$25 million) was approximately 200
Million to 4.5 million US dollars. For a case with a risk of less than 1 million US dollars, the cost is 300,000 to 750,000 US dollars.
Yuan, or about half of the disputed amount. [177] Of course, this is closely related to the American judicial system, but
It is undeniable that the abuse of this right will indeed increase the cost of social litigation.
In general, the non-questioning restriction in intellectual property licensing will prevent the licensee from exercising the
The behavior of intellectual property rights has caused the intellectual achievements that belong to public property to be monopolized by private individual
The burden is also a loss to the welfare of consumers. This restriction is only beneficial to the licensor and generally does not produce
The positive effect of improving efficiency. But at the same time, it is necessary to prevent the licensee’s abuse of the right to challenge the expansion of te
Scattered obstacles.
4.4.4 Suggestions on anti-monopoly legislation for non-doubt clauses in my country
Article 30 of my country’s “Foreign Trade Law” stipulates that “the holder of intellectual property rights has prevented the licensee from
Question the validity of Tongzhong’s intellectual property rights, conduct mandatory package licenses, and stipulate exclusivity in the license contract
The State Council’s foreign trade department
The sauce is made up, and the middle stuffing is made up of at least jelly. "Quoted from [America] Adam B. Jaffe, Josh Lerner, Luo Jianping, Lanhua Translation, Innovation andDissatisfaction: The harm of the patent system to innovation and progress and countermeasures, Renmin University Press of China, 2007 edition, p. 24.① There is further analysis on this point later in this section.
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Necessary measures can be taken to eliminate the hazards. "This is the most direct provision regarding the non-doubt clause. Since the non-doubt clause
This paragraph will only appear in the intellectual property license. Therefore, my country’s "Anti-Monopoly Law" does not provide for this, and can only
Regulate from the basic legislative spirit of restrictive competition agreements and abuse of dominant position.
In practice, Chinese enterprises are generally in the position of licensee in intellectual property licensing, and the license agreement
Validity challenge restrictions will harm the interests of licensees, and more importantly, increase the technology costs of Chinese enterprises and hinder te
Technological innovation will ultimately harm our country’s overall social interests, including consumer welfare of course. Therefore, we should borrow
Based on the practices of other countries, strictly restrict the non-questioning restriction clauses in the license agreement.
First of all, when the subject of the license is a patent, it can be considered as illegal in itself. As long as the licensor is in
If the same China restricts the licensee’s right to challenge the validity of the subject matter of the license, the clause shall be deemed invalid.
The legislative consideration is compared with the principle of effect stipulated in the current "Foreign Trade Law"
Preface) to be more specific and specific.
Secondly, it is not appropriate to clearly stipulate that the licensor shall terminate the contract when the licensee challenges the validity of the licensed
The validity of the terms. It is generally believed that the licensee is the person most qualified and motivated to question the validity of the technology
select. This theory is quite reasonable, but it may be stated as merely the most qualified person to challenge.
Close to the actual situation. Because the licensee often has made a lot of investment in the licensed technology, such as purchasing raw materials,
Equipment, employment of labor, etc., if the technology is finally confirmed as valid, the licensee may face termination of the license agreement
Circumstance, and once the license agreement is terminated, the licensee will suffer huge losses. Considering this risk, the licensee will be
Unless the licensor is very sure, he will not easily challenge the validity, and would rather pay a certain royalty
(Even if he has doubts about the validity of the patent). Therefore, the EU stipulates that the licensor’s right to terminate the contract is
The effectiveness of the licensor questions the balance of rights and interests. However, considering that my country is mainly a licensee, this article believ
In order to obscure this point, in practice, we can strive for more practical benefits for our country's technology importers.
Finally, the non-questioning clause for proprietary technology can be supported. Because as the European Union pointed out, the exclusive
Technology is generally a trade secret, and the provision of non-questioning clauses is beneficial to protect the interests of the licensor, otherwise once it is
The right of the licensor to question, the technical secrets are often disclosed, causing irreparable losses to the licensor.
Therefore, in order to prevent the licensor from refusing to license externally under such concerns, the non-questioning clause for proprietary technology, o
Generally can be considered as legal itself.
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Chapter 5 Antitrust of Anti-competitive Agreements in Intellectual Property Licensing
Legislation
5.1 Anti-monopoly legislation on grant-back clauses in intellectual property licensing
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5.1.1 Definition of grant back in intellectual property licensing
Grantback is a common restrictive clause in intellectual property licensing. The United States’ 1995 "Intellectual Property Licensing
In the Trust Guidelines, grant back is defined as: “A grant back is when the licensee agrees that the intellectual property licensor has the right to use
The licensee’s improved licensing technology agreement. "Based on feedback involving basic technology, improved technology, and both
Interconnection is an important condition, and the general grant-back clauses appear in the patent license agreement.
There is a grant-back clause in the patent license agreement, which mainly exists when both the licensor and the licensee use the license
In the case of patents, for the licensor, if the grant-back clause is not stipulated, the licensee may
The threat of technological improvement of the licensed patent to seize the market of the patentee. If the licensee passes certain
The degree of improvement has improved the use efficiency and product quality of licensed patents, and the licensor has no responsibility for this improvem
Rights, the licensee can squeeze the licensor’s similar products and services out of the relevant market, while the licensor only
Only a limited usage fee can be obtained. Furthermore, once the licensed patent expires, the royalty obligation generally follows
Terminated, and the licensor has lost most or all of the market. Out of concerns about the above situation, permission
The person either stipulates a grant-back clause or refuses permission. Therefore, the anti-monopoly on the grant-back clause in the license agreement
Ruling analysis is also based on the impact of grant-back clauses and refusal of licenses on competition, innovation, efficiency, and consumer welfare.
On top of the negative impact of the trade-off.
In practice, feedback can generally be classified into different standards:
First, exclusive feedback and non-exclusive feedback. Exclusive feedback means that the licensee can only
The improvement of the licensed technology is granted back to the licensor, and it can no longer be licensed to a third party. In the provision of exclusivity
In the license agreement of the grant terms, the licensee enjoys only the right to use his own technological improvements.
It cannot get a full return from the external license. Therefore, the exclusive grant-back clause imposes technical restrictions on the licensee.
The negative effect of incentives for technological improvement is the most obvious. Non-exclusive grantback means that the licensee is
While improving the feedback to the licensor, you can also implement your own technology and license it to a third party. With exclusivity
Compared with grants, non-exclusive grants have less negative impact on competition and are generally not subject to anti-monopoly regulations.
Second, reciprocal feedback and non-reciprocal feedback. Reciprocal grantback refers to the licensor and the licensee
Each person has the right to use the other party's technical improvements in the licensed patent. Not a reciprocal return
In practice, the grant is generally expressed as only stipulating that the licensor has certain rights to the relevant technological improvements of the licensee
The licensee does not have any rights to relevant improvements made by the licensor.
Third, paid feedback and unpaid feedback. According to whether the grant-back clause in the license agreement stipulates a certain
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The amount of remuneration is divided, and the feedback behavior can be divided into two types: paid and unpaid. Paid back grant refers to the
When one party obtains the other party's right to use the improvement of the licensed technology, it must pay a certain amount of remuneration; none
Compensatory grants refer to the right to use the other party's technological improvements to be obtained free of charge. Generally speaking, a grant-back c
Repayment is a gratuitous form, depending on whether the licensor has a dominant position and whether the grant back is reciprocal,
Whether it is exclusive and other related factors. From the perspective of the negative effect of restricting the grant-back clause on the licensee’s innovation
Paid feedback is obviously more in line with the positive meaning of feedback.
5.1.2 Legislation and judicial practice on grantback in the United States, Europe and other countries and regions
5.1.2.1 Related U.S. legislation and judicial practice
In the “nine no” clauses in the licensing of intellectual property rights in the United States in the late 1970s, the following rules were made for grants
Determination: For exclusive grant-back clauses, it is deemed illegal by itself, and non-exclusive grant-back clauses do not violate anti-monopoly
Law. [178] However, in 1988, the U.S. Antitrust Agency’s guidelines have been
The rationality rules can be applied to balanced and mutually exclusive grant-back clauses. The Department believes that in the licensor and
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When the licensee is producing according to the licensed technology, the grant back will protect the licensor’s investment in the technology, and require
The licensor’s transfer of the improvements made will also protect the licensee’s investment. [12] In 1995, "Intellectual Property Licensing
In the Antitrust Guidelines, the principle of reasonableness is applied to the feedback, and some pro-competitive actions of the feedback are recognized.
use. However, the guidelines point out that if the feedback is non-exclusive, these benefits will be more significant. Section 5.6 of the guide
Section provisions: Feedback has the effect of promoting competition, especially non-exclusive feedback. Licensee
And the licensor provide a way to share risks, so that the licensor has the right to enjoy the license-based technology or
The benefit of possible further innovations activated by the licensed technology; feedback can first promote innovation, and can also promote
Proceed to follow-up licensing of innovations. However, if the grant back greatly weakens the licensee’s motivation for research and development,
And thus restricting the competitiveness of the innovation market, feedback may have a negative impact on competition.
The early representative case of the U.S. Supreme Court in the anti-monopoly regulation of grant-back clauses was the 1947
The Transparent-Wrap Machine Corp., v. Stokes & Smith Co. case, [179] the court found that
The past grant-back clause allows the licensor to obtain the licensee’s improvement patent is not itself illegal, but applies reasonable principles.
Then analyze. In this case, the patentee sold the goods and exclusively licensed the patent related to the goods
buyer. The license guarantees that the buyer will grant back any improvements to the patent to the licensor. Grant back patent
Therefore, it will belong to the exclusive license agreement. This mechanism enables the buyer to continue to enjoy its own inventions and creations.
Exclusive rights. The Supreme Court confirmed the extended status of the licensor’s rights: the licensor obtained improved patents
The monopoly obtained expands the scope of its basic patents. However, the court held that through one patent, another
A patent does not allow the patentee to extend the monopoly power to the monopoly or trade restrictions regulated by the anti-monopoly law.
System, he only obtains another legal monopoly through a legal monopoly. In the subsequent appeal hearing,
Judge Hand supported the opinion of the court of first instance that the grant-back agreement was legal. However, in the appendix
In the review, the Supreme Court stated: “The grant-back clause may be used to make the original patent monopoly of the patentee permanent
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Effective tool. " [179] In 1948, the United States v. General Elec. Co. case, the highest
The court also expressed concern about the negative effects of the grant-back clause on competition. In this case, General Electric
After the grant-back clause and other restrictive clauses, it is possible to obtain continuous compensation for incandescent lamps after the patent has expire
The price and output control of the company was found to violate Article 2 of the Sherman Act. [180] In 1978, SCM Corp. v.
In the Xerox Corp. case, the Supreme Court also found that the non-exclusive patent grant-back clause did not violate the antitrust law.
In a series of court cases on granting back grants, the principle of reasonableness is applied for analysis. The focus is on: (1)
Does the grant back broaden the scope of the initial patent? That is, whether the patentee has used the patent lever to extend his patent
right? (2) Is the grant back limited to the enhancement of the initial patent? (3) Is there an alternative to the licensed patent?
technology? (4) The negative effect of the grant-back clause on the licensee's incentives for patent research and improvement. [181]
5.1.2.2 Relevant EU legislation and judicial practice
In the European Union, grant-back may be prohibited due to violation of Article 81(1) of the Treaty of Rome.
Unless exemption can be obtained under item (3). Therefore, to measure whether the grant-back clause is
Indispensable restrictive measures such as high consumer welfare are a reasonable analysis of the EU's grant-back clauses.
This rationality analysis is reflected in the 772/2004 Regulations of the Commission of the European Communities. Article 5 of the Regulation
Article paragraph 1 (a) (b) sets out the terms for the following feedback can not enjoy the exemption of "exclusion limit" clause ① :
(A) Directly or indirectly require the licensee to make separable improvements to the licensed technology, or
Grant exclusive rights to the licensor or a third person designated by the licensor for its own new method of using the licensed technology
license. (B) Directly or indirectly require the licensee to make detachable changes to the licensed technology
Transfer to the license
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Person or a third person designated by the licensor.
The above-mentioned provisions are explained in the guidelines of the Commission of the European Communities 2004/C 101/02. The guide refers to
The purpose of the above-mentioned provisions is to avoid granting exemptions from clauses that may reduce the licensee’s motivation for innovation.
The above-mentioned provisions involve the exclusive license or transfer of the divisible improvement or new application of the licensed technology to the
people. If a technology can be used without infringing on the licensed technology, it is divisible. Will be right
Dividable improvements in licensed technology or new applications that are exclusively licensed or transferred to the licensor may reduce the number of li
The motivation for innovation, because it hinders the licensee’s use of improvements (including licensing to third parties). This may
Improvements that occur in the same application area of the licensed technology may also occur in the new application area of the licensed technology.
Domain improvement. Such grants cannot be granted exemptions, but this does not include non-exclusive grants of divisible improvements.
This is true even if the obligation to grant back is non-reciprocal. For example, the grant-back obligation is only on the part of the licensee, or
The licensor has the right to transfer the divisible improvement of a certain licensee to other licensees. Non-reciprocal response
Granting allows the licensor to freely decide whether, and to what extent, to pass on its own improvements to the licensee
People, this can promote innovation and the dissemination of new technologies. The licensor has the right to change a licensee’s severable
① The exclusion restriction means that if the above clause is included in the technology license agreement, the clause itself cannot be exempted. And the other terms of the agreement are based onOf course, it can be exempted under the regulations.
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Into other licensees for use, so that the licensee can know that he and other licensees when signing the contract
At the same level in technology, this can also promote the spread of technology. Exclusively feedback indivisible changes
Progress is not a restriction on competition, because indivisible improvements cannot be used without the consent of the licensor.
Dividable improvements to licensed technology or exclusive licenses for new applications or grants back to the licensor cannot be
Get an exemption. Therefore, individual evaluations can only be made in accordance with Article 81(1)(3) of the Rome Treaty. Under review
When making a price, there are two factors that the guide clearly points out to be considered: First, whether there is consideration for the feedback.
The exclusive license or the grant-back clause of the assignment does not differ depending on whether the licensor paid the consideration for the grant-back
The existence of the price and the level of the consideration are factors considered when evaluating individual cases in accordance with Article 81 of the Tr
one. If there is consideration for feedback, it is less likely to hinder innovation motivation. Second, the licensor is
Market position in the technical market. The market position of the licensor in the technology market is also a relevant consideration.
factor. The stronger the position of the licensor’s technology, the more likely the licensee is to be an important source of innovation.
An important source of post-competition. If a license agreement with a grant-back obligation forms a parallel network, then it will increase
Add the negative impact of the obligation of giving back. If the available technology is controlled by a limited number of licensors, they will
The licensee imposes an exclusive grant-back obligation, which is related to the existence of many technologies, and only some of them are in accordance w
The risk of anti-competitive impact is greater than the situation where the grant-back condition grants a license.
5.1.2.3 Relevant legislation in Japan
Japan’s Fair Trade Commission, 1989, "Regarding the Unfair Orthogonal Control of Patent and Technology Secret License Agreements"
Section 1(6) of Part II of the "Easy Method Guide" states: “(Assumed to be legal) If the parties’ rights and
The obligations are balanced, then the licensor can require the licensee to notify the licensor of the knowledge and experience gained
Regarding the improvement of licensed technology or patent application, and requiring the licensee to give the licensor a non-exclusive license
Can. "
In 1999, the “Guide to the Anti-Monopoly Law of Patent Right and Technology Secret Licensing Agreement” elaborated on granting back grants.
Regulations: (1) Obligations regarding the assignment and exclusive license of improved inventions. In the patent license agreement, such as
If the licensor requires the licensee to transfer or exclusively license its improvements to the licensor, such a requirement will make the licensor
A strong position in a certain product or technology field is strengthened, restricting the licensee’s own use or through licensing
Can use the knowledge, experience, and improvement of inventions acquired by oneself to weaken the licensee’s motivation for research and development
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The development of new technologies has a negative impact on market competition. The licensor’s request is usually not
Therefore, it is very likely to be an unfair trading method that violates the prohibition of monopoly law. superior
The above points of view also apply to proprietary technology licensing agreements. (2) Regarding the non-exclusive license obligation for improved inven
In the patent license agreement, the licensee is required to license its improved invention and applied invention non-exclusively to the license
Human, in principle, is not considered an unfair trading method. However, if the licensor requires that the licensee is not alone
Excessively granting back the license while prohibiting the licensee from licensing the improved invention to a third party will weaken the license
Pleasant research and development motivation, hindering the development of new technologies, and having a negative impact on market competition, is no
The fair trading method violates the provisions of the Anti-Monopoly Law. The above point of view also applies to proprietary technology licensing agreem
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(3) The obligation to report on acquired knowledge and experience. In the patent license agreement, if the licensor requires
The licensee reports to the licensor the newly acquired knowledge and experience related to the patent, which is not considered to be in principle
Unfair trading methods. The above point of view also applies to proprietary technology licensing agreements.
It can be seen from the above provisions that Japan’s attitude towards feedback is similar to that of the EU.
Exclusive, and the rights and responsibilities of both parties are balanced, then it is legal in the patent license. In Japan and Europe
In the licensing system, the granting of technological improvements is an exception to the general regulations of the anti-monopoly law, and the rights and
Is a necessary condition. When the feedback is exclusive or the responsibilities of both parties are not balanced, this restriction is similar to the United State
The intermediate category of the rationality rule needs further analysis. However, “if the licensor does not undertake a similar increase
The obligation to bind the licensee, or the content is unbalanced, so that disadvantages are excessively imposed on
"On the part of the licensee", then this kind of grant-back clause is illegal. In addition to the considerations of traditional anti-monopoly law,
Emphasizing "fairness" is a general feature of Japanese standards. Therefore, compared with the analysis of the rationality principle in the United States, Ja
The review of grant-back clauses is more detailed and in-depth.
5.1.3 Anti-monopoly law analysis of grant-back clauses in intellectual property licensing
5.1.3.1 General analysis of feedback
Generally speaking, the negative impact of feedback on competition lies in the following aspects: First, feedback will reduce the
Keren is an incentive to improve the licensed technology. Technology is always evolving, and the improvement of technology means effectiveness
Increasing rates and reducing costs will ultimately improve consumer welfare. Therefore, whether it is intellectual property law or
It is an anti-monopoly law, and its common goal is to encourage innovation: intellectual property law grants exclusive rights to innovation.
Reward creators, and antitrust laws generally promote innovation by maintaining free competition. Grant-back clause through grant
The licensor has certain rights to the technical improvement of the licensee, which undermines the licensee’s
The intellectual property law protects its own technological improvement. In this case, the licensee lacks the
Active intellectual property law incentives for technological improvements. Especially for exclusive grants, the licensee does not have the right to change
The right to import patents for free transfer and licensing is even more lacking in the motivation to improve technology. second round
Licensing can strengthen the licensor’s dominant position in licensing technology. Generally speaking, in the licensing of intellectual property rights,
Keren is quite a licensee with a considerable advantage. And if the right holder of a patent passes multiple licenses
The agreement licenses the patent to different licensees, and each license agreement protects the grant-back clause, namely
With the non-exclusive grant-back clause, the licensor can easily grasp all related improvements of the patented technology,
And each licensee can only enjoy his own improvements. In this case, the dominant position of the licensor is
Strengthen or even evolve into the dominant position of the technology and product market, thereby threatening the free competition in the relevant market
In the case of Transparent-Wrap Machine Corp., v. Stokes & Smith Co., although
The grant clause made an affirmative judgment, but in the judge’s incidental opinion, it was pointed out:
The patent owner can still control an industry for a long time after the expiration of the basic patent. Can exclude competitors and real
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Now, maintain an industrial monopoly. Through the application of patent pools or multi-party licensing agreements, all of an industry
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The results of the invention can be systematically collected into the hands of the original patentee. [179]
On the other hand, grantback also has a positive impact on competition. The most important point is that grantback helps make patents
Inventions are most fully and effectively applied, while ensuring effective technology division and effective use of new technologies.
[12] Because, if there is no guarantee of the grant-back clause, the intellectual property owner may be afraid of losing technical
Advanced status and relevant market share and refused to license the invention-creation patent, except for a few refused
Licensing may be compulsory for violating the anti-monopoly law, and the intellectual property owner’s refusal to license is also the act.
A form of exclusive rights that the law has no right to interfere with. From an economic point of view, the refusal to license external knowledge
Property rights always mean that the intellectual property rights have not been used and developed to the maximum, which is a negative effect of social eff
loss.
Therefore, grant-back, especially non-exclusive grant-back, is a technology that is shared by the licensor and the licensee.
Technology development risks and the arrangement of sharing benefits from technology development, so that the licensor has the right to enjoy
This benefit of possible further innovation activated by the licensed technology, thereby promoting innovation.
5.1.3.2 Anti-monopoly law analysis of different types of feedback behaviors
The competition law analysis of grant-back clauses should not only consider the impact of grant-back clauses on competition in a single license agree
Impact, restrictions on licensors and licensees, and more need to consider the grant-back clauses in overlapping license agreements
The network effect and cumulative effect produced by the case, the latter means that for the same license subject, the licensor will
It can be given to different licensees, and at the same time, the grant-back clause is stipulated. In this case, the grant-back clause is
The impact is cumulative. The following analysis is from the two corners of separate license agreements and overlapping license agreements.
Degree unfolding.
First, the impact of the grant-back clause in a separate license agreement on competition. Evaluation of a separate licensing agreement
The impact of the grant-back clause in the negotiation on competition mainly considers the following factors: (1) The relationship between the licensor and
Whether it is a competitor in the technology market or product market related to the licensed technology. If the licensor and the licensee are not
There is a competitive relationship, and it is impossible to have a competitive relationship in the future, such as R&D institutions license their technology t
The license agreement is a true vertical agreement, and the grant-back clause will not have a negative impact on competition. if
If there is a competitive relationship between the licensor and the licensee, the rationality analysis shall be carried out according to the specific provisions o
If the grant-back clause is reciprocal, it will have a greater negative impact on the competition and innovation within the brand, because there are competiti
If the licensor and the licensee in the dispute have assumed a reciprocal grant-back obligation, out of the consideration of "free-riding",
The innovation motivation of both parties will be suppressed, because innovation will not bring themselves better than their competitors’ technological adv
Potential. At the same time, due to the feedback, the product cost and structure of the two parties will tend to be assimilated, making it easier to form a de f
Cartel. In the case that the grant-back clause is exclusive, the above-mentioned negative effects will be magnified. Therefore, the total
In terms of the licensor’s competitive relationship with the licensee, the grant-back clause will receive more attention from the anti-monopoly law.
(2) Whether the grant-back clause restricts the circulation of the improved technology. Knowledge products are based on their economic nature and
Language is a public product. Due to its characteristic of zero marginal cost, a knowledge product is used by more people and more
For the second use, the output is higher. But to encourage the production of knowledge products and prevent free-riding behaviors
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The negative impact on knowledge products will grant legal exclusivity to knowledge products that meet certain conditions.
In other words, the series of transaction costs incurred by the legal exclusivity of intellectual property rights are social incentives for knowledge
Indispensable for the production and utilization of products. For efficiency considerations, in the case of relatively fixed costs,
The more the use of intellectual property rights, the higher the output and, of course, the greater the efficiency. So, for intellectual property licensing
The basic idea of the anti-monopoly regulation of restrictive agreements is: Compared with non-licensing, restrictive licenses
Intellectual property rights are always more efficient. Specifically on the issue of feedback, as long as the feedback has the circulation of knowledge produc
The possibility of being used multiple times) does not cause major restrictions, then the feedback is generally allowed. United States Jay Dratler
The professor summed up this issue as "circulation rights", which means that although improvements are granted back to the licensor, the
The improvement is then circulated back to the licensee, allowing the licensee to use his own improvements. In its "Intellectual Property Licensing"
In the part of the book about granting back, it states: By ensuring that the licensee has the right to apply his own improvements
At the same time, ... those "circulation" clauses avoid the two potential restrictive effects of feedback. first,
These clauses reduce the risk that the licensor who enjoys the rights and interests of improvements in himself and the licensee will agree
Until the expiration of the license and legal protection period; secondly, these clauses can avoid
Undermine the incentive mechanism for licensees to engage in creative activities, because some improved patents can be used immediately and improved
The interests of the licensee. For the above reasons, circulation clauses have become those that can be legally stored under judicial review
Exclusivity feedback of the present—if not essential, but general—characteristics. Non-exclusive return
The grant itself has a similar effect, so it is also recognized. [12] This article believes that the so-called "circulation rights"
To a certain extent, it refers to the non-exclusive nature of the grant-back clause, and its essence is to extend to the improvement of technology.
The possibility of widespread use, that is, the licensee can not only use the improvement himself, but also retain the
The right to foreign license and transfer of advanced technology. In this case, the grant-back clause has a negative impact on the licensee’s innovation.
The impact is greatly offset, because the licensee can not only benefit from the direct market effect of the improved technology,
Profits can also be made through external licensing and transfer of the improved technology.
(3) The market position of the parties to the license agreement. If the licensor and the licensee are in the relevant technology market or
There is no dominant position in the product market, even if there is a competitive relationship with each other, and the grant-back clause will restrict and
Suppress intra-brand competition, but as long as there is inter-brand competition, the negative effect of the grant-back clause on competition is
Can be ignored. On the other hand, if the parties, especially the licensor, occupy a considerable market
Power, or the licensed intellectual property is a technical standard in the industry, the grant-back clause can strengthen the licensor’s support
Allocate status, and even curb competition in an all-round way, resulting in a great anti-competitive effect. The licensor and the licensee
When a person is an oligarch in a certain technology or product market, the same situation will also occur. For example in United
In the States v. Besser Manufacturing Co. case, the court held that the two dominated the industry
Mutual and exclusive feedback between companies will curb competition between them, thereby curbing the entire market
Competition is therefore illegal and antitrust laws. [182]
Second, the impact of grant-back clauses in multiple license agreements for the same subject technology on competition. For feedback,
Especially for the exclusive grant-back clause, in addition to examining the impact of the clause on competition separately, it must also consider
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The impact on competition in the context of network effects or cumulative effects. Network effects or cumulative effects may occur under
Column situation:
(1) The same licensor licenses the same technology to multiple licensees, and each license agreement
Both stipulate grant-back clauses, even if it is a non-exclusive grant-back clause, the licensor can easily master the patented technology
All related improvements of the technology, and each licensee can only enjoy their own improvements. In this case, Xu
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Keren’s dominant position has been strengthened and even evolved into a dominant position in the technology and product market, thereby threatening theFree competition in relevant markets. Through granting back, the basic patent owner can still have the basic patent long after the expiry
Control an industry for a long time. It can exclude competitors and realize and maintain an industrial monopoly. Through patent pooling
Or the application of a multi-party license agreement, all the inventions of an industry can be systematically collected into the original patent
Human hands. On the other hand, the competition law analysis of the grant-back clause in this kind of licensing situation should also be combined with the
Consider the relationship between licensors. For example, if there is a competitive relationship between licensees, then
Even if the improvement will give the licensor a certain advantage according to the grant-back clause, each licensee still has the right to the license
The technology is improved to improve its own competitiveness (this competition is mainly reflected in the competition within the brand), but,
If the licensor obtains the license or transfer of the improvement, he can still license it to other licensees, that is, a certain
The improvements made by a licensee will be circulated among other similar licensees, or even freely circulated, then
Each licensee’s incentive to improve technology will be weakened, because improving technology will not bring them technical
The advantages.
(2) Several companies have similar technologies, and they have entered into exclusive grants with their licensees.
Obligations, so that all competitive technological improvements and new methods are controlled in the hands of these companies.
The result is often the segmentation of the technology market. This has an anti-competitive effect compared to when there is no network situation.
The risk of ringing is greater. [175]
5.1.4 Suggestions on my country's anti-monopoly legislation regarding grant-back clauses in intellectual property licensing
In my country, the regulation of granting back in intellectual property licensing mainly applies to Articles 13, 14 and 15 of the Anti-Monopoly Law.
Articles related to the relevant provisions of the anti-competition agreement. At present, there is no provision for granting back grants in intellectual proper
The normative legal documents and precedents stipulated by the law, but awaiting the integration of our country’s actual
Analyze and apply the actual situation.
In reality, on the one hand, as a major technology importing country, my country’s current economic and technological level is relatively backward.
In most intellectual property licensing agreements, Chinese companies always act as licensees to obtain foreign intellectual property rights.
Technology licensing and use; on the other hand, my country’s current technology and industrial policies to promote innovation are
Main intellectual property rights, and our scientific and technical personnel also have strong innovation ability. In this case, foreign knowledge
When licensing intellectual property rights to Chinese enterprises, intellectual property licensors will consider whether Chinese enterprises will
New alternative technologies are developed on the basis of property rights, and it is likely to require a return in the intellectual property licensing agreemen
Grant terms. Therefore, it is very necessary to formulate rules governing the grant-back in intellectual property licensing, and this article recognizes
Therefore, more strict feedback anti-monopoly regulations should be implemented in more developed countries. As mentioned earlier, feedback versus com
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The negative impact of the licensor is mainly reflected in the weakening of the licensee’s initiative to innovate and the strengthening of the licensor’s domi
These two points will have a particularly serious negative impact on my country’s current technology market and product market.
Therefore, with regard to the anti-monopoly laws and regulations for granting back grants, we should also start from these two aspects. In general, due to fe
Competition and innovation have both pros and cons. Therefore, the anti-monopoly laws and regulations for feedback should mainly be applied to
The principle of justice is supplemented by the principle of its own legality and its own illegality. When analyzing the rationality of specific grant-back clau
First, we should distinguish between exclusive and non-exclusive feedback, and combine the market position of the licensor and the licensee.
Based on analysis, this article puts forward the following legislative suggestions:
First, the exclusive feedback that the licensor has a dominant market position has a greater negative impact on competition.
That is, it weakens the licensee’s motivation for innovation and strengthens the licensor’s dominant position, which can be deemed illegal by itself.
Second, the non-exclusive feedback when the licensor does not have a dominant market position, because there will be no impact on the improvement of te
The use of circulation will have a negative impact and will not weaken the licensee’s incentive to innovate.
It can be stipulated as legal itself. Third, the grant-back clauses in other situations shall be analyzed by applying the principle of reasonableness.
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Other situations include: (1) Exclusive grant back under the circumstances that the licensor does not have a dominant market position; (2) License
Non-exclusive feedback when a person has a dominant market position. The following factors can be considered in the analysis: the licensor and the
Whether the licensor has a competitive relationship; whether the feedback is unilateral or mutual; whether the consideration is paid, etc. generally
In other words, the non-exclusive feedback between the competing licensor and the licensee will also restrict the relationship between the two parties.
The consequences of competition between the two parties should also become acts prohibited by law. At the same time, generally speaking, unilateral, non
Compensated grant-back clauses are always more likely to be anti-competitive than a two-party, paid-back grant.
5.2 Anti-monopoly legislation on exclusive licensing and geographical restrictions in intellectual property licensing
5.2.1 Definition of exclusive license and geographical restriction in intellectual property licensing
Exclusive license is a kind of intellectual property license agreement with strong exclusivity. Generally speaking, exclusive license
The licensor is prohibited from re-licensing the subject matter of the license to a third party. According to whether the licensor is allowed to use the
The difference in technology can be divided into exclusive licensing and exclusive licensing.
licensing). The former means that the licensor shall not grant this item to a third party within the area and time limit specified in the contract.
The right to use the technology, and the licensor itself is not allowed to use the technology; the latter only prohibits the licensor from using the technology
Re-license to a third party, but the licensor reserves the right to use the technology. It can be seen that the exclusive license
Is more restrictive than an exclusive license. Exclusive licenses are often issued in the areas of copyright, trademarks and patents.
pregnancy. The granting of exclusive licenses is often used to encourage licensees to invest in the construction of production lines or sales networks for pro
There are positive economic efficiency reasons for selling licensed products or services. Exclusive permission is often associated with geographical restrict
Tied together. Because in terms of the characteristics of the domestic law of intellectual property, if there is no specific geographical scope, then
The scope of effectiveness of the intellectual property rights is often regarded as its geographical scope; in practice, in order to maximize intellectual prope
The economic income obtained by the right holder through the license, and the exclusive license usually delimits a certain geographical scope. on the other
Although geographical restriction does not absolutely mean exclusive permission in the designated area (because it may also appear in the
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(A situation where multiple licensees are simultaneously licensed within a certain area), but in practice, geographical restrictions are often accompanied by
Licensing to ensure reasonable returns for the licensee in the designated area. Therefore, this section will discuss them together.
5.2.2 Anti-monopoly laws and regulations on exclusive licenses and geographical restrictions in the United States, Europe and other coun
5.2.2.1 Legislation and judicial practice in the United States
In the United States, the first prerequisite for the anti-monopoly regulations of exclusive licensing is to analyze whether the licensing agreement is in
Vertical or horizontal. For vertical agreements, due to the influence of the Chicago School, in 1977 GTE
After the Sylvania case, the analysis was conducted using the principle of reasonableness: the Chicago School believes that vertical restrictions are not acce
Can be anti-competitive, because the licensor’s protection of the licensee is always necessary to incentivize the licensee’s investment
Sex is limited, and there is no motivation for overprotection. In the Sylvania case, the theory of the Chicago School was applied,
A well-known concept was proposed: intra-brand competition and inter-brand competition. The Chicago School advocates
Inter-brand competition is the primary — if not the only — goal, so the restrictions on intra-brand competition
Anti-monopoly regulations are secondary and can even be exempt from anti-monopoly regulations. This article believes that the
When applying the Chicago School’s theory to the available exclusive licenses (regional restrictions), attention should be paid to distinguish
The difference between an exclusive license for a trademark and an exclusive license for a patent can be completely
Applicable brand competition theory, while the exclusive licensing of patented technology, applicable brand competition theory is based on a product
The brand uses a patented technology based on the assumption, but in practice, it often appears that a technology can be the same
Different brands (manufacturers) are permitted to produce at the same time. Therefore, if an intellectual property
If the necessary technology for products or services is adopted in the form of an exclusive license, it will not only eliminate competition within the brand, b
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It also eliminates competition between brands. In short, when a patent is used as the core technology of a product or service, the exclusive license
The possible anti-competitive risks are greater than the geographical restrictions in non-patent-related intellectual property rights.
The U.S.'s exclusive license for a horizontal nature-such a license is often expressed as a geographical division at the same time-then
It is deemed that the act of demarcating the market to eliminate competition is regarded as illegal in itself. In 1995, the Intellectual Property Permit
According to the Antitrust Guidelines, it is only between the licensee or between the licensor and the licensee as water
When the relationship is settled, the parties to the exclusive license agreement arouse the attention of the anti-monopoly law. [183] Unlike Europe, in this guid
It is pointed out in 3.3 that the so-called horizontal relationship refers to when the license agreement is signed, the licensor and the licensee or
Keren already exists or has a potential competitive relationship. ① This guide affirms the promotion of competition by exclusive licensing
Use: The use field, geographic area and other restrictions on intellectual property licensing can be achieved by making the licensor as rich as possible.
To use its property rights efficiently and effectively to achieve the goal of promoting competition. These different forms of exclusive permission
Incentivize the licensee to invest in the commercialization and circulation of products containing the licensee’s intellectual property rights, and be
Licensed property rights to develop other applications. For example, restrictions can protect licensees from other licensees and licenses.
Keren free rides on its investment. These restrictions can also increase the licensor’s motivation for licensing, for example,
Protect the licensor from competition with its own technology in the market that it wishes to keep for itself.
① The European Union also includes the competitive relationship caused by the signing of the licensing agreement. Therefore, the EU’s attitude towards exclusive licensing is stricter than that of the United States.Mainly because of the EU's concern for the goal of establishing a unified market.
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For the analysis of the competition law of the exclusive license, the guidelines stipulate that the safe harbor clause is also applicable. The guide emph
The restrictive clauses in the license agreement do not appear to be anti-competitive or the market share of the licensor and the licensee
If the total amount does not exceed 20% of the relevant market, the exclusive license shall not be considered as illegal and anti-monopoly law;
When analyzing the competitiveness of regulatory clauses, and the relevant market share cannot be determined at the same time, the guide believes that as
There are four or more alternative technologies and the restrictive clauses are not obviously anti-competitive.
Monopoly laws and regulations.
Therefore, for the United States, the analysis of an exclusive license antitrust law often focuses on its impact on free trade.
Instead of paying attention to whether it divides the market, the EU is paying more attention to whether it divides the market.
5.2.2.2 EU legislation and judicial practice
In the European Union, exclusive licenses combined with geographic restrictions are generally subject to stricter antitrust laws than the United States
Because according to the goal of unifying the large European market established by the Treaty of Rome, the segmentation of the market is completely cont
Away from this direction. [184] Article 81 of the Treaty stipulates: “1. All trades that may affect the
Inter-firm agreements, enterprise associations for the purpose of hindering, restricting or distorting competition in the common market or the effect of this
Resolutions and unanimous acts are considered incompatible with the common market and are prohibited, especially the following acts:...(c)
Divide markets or sources of supply;..." EC Commission 772/2004 Regulations on the Exclusion of Intellectual Property Licensing
His license and geographical restrictions have made the following provisions: When the parties to the technology transfer agreement are competing enterpr
Directly or indirectly, alone or in combination with other factors controlled by the parties, it has the effect of “partitioning the market and customers”
For the purposes of this regulation, the exemptions provided by the regulations do not apply. However, the following situations do not belong to the divisio
In a non-two-way agreement, the licensor and/or licensee are required to assume obligations not to use one or several technologies
Domain, one or several product markets, one or several exclusive territories reserved by the other party
Technology; require the licensor to assume the obligation not to license the technology to others in a specific area; in a non-two-way agreement
During the negotiation, restrict the licensee and/or the licensor to actively and/or passively reserve exclusive territories or exclusions from the other party.
Sell to other customer groups; in a non-two-way agreement, the licensee is restricted from voluntarily asking the licensor as another licensee
Sales in a specific exclusive territory or customer group designated by the
The licensor is not a competing company. When the parties to the technology transfer agreement are non-competitive enterprises, if the agreement directly
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Indirectly, alone or in combination with other factors controlled by the parties, there is a “restriction on the licensee’s passive sales contractThe product’s geographic or customer purpose” cannot be exempted. However, the following conditions are excluded:
Reserved exclusive territories or customers passively sell contract products; restrict the
The contract product is sold to another region or customer group, and the other licensee is in the exclusive region or customer group
Within the first two years of the sale of the contract product. In the subsequent guidelines, the above provisions are analyzed: mainly
Focus on the relationship between the licensor and the licensee, and whether the license agreement is one-way or two-way.
First, the two-way exclusive license between competitors constitutes the core limitation of dividing the market structure between competitors.
System is not allowed. As long as the two-way exclusive license does not exceed 20% of the market share, it can be exempted. like
As mentioned earlier, exclusive licenses are more competitive than exclusive licenses, because exclusive licenses exclude
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The competition between the other owners including people and the licensee, if the competitors grant exclusive licenses to each other, then
Combined with geographical restrictions, the market division between competitors is actually realized, and the competition between the two is eliminated.
It does not make a substantial contribution to consumer welfare because it is prohibited by competition law. Although exclusive license is excluded
Competition from a third party, but there is still competition between the licensor and the licensee in the relevant regions, as long as two
If the market share of the person does not exceed 20%, it means that it will not have excessive negative effects on the relevant market. second,
One-way exclusive licenses between competitors can be exempted provided that the threshold requirements are met. One-way exclusive license
It may mean that the licensor completely transfers the relevant market to the licensee, thereby ensuring that sufficient
Incentives to use technology and expand the market. As long as the market share of the licensor and the licensee meets the threshold
Demand, it means that there is still enough competition between brands in the market for the subject of the license and the product or service. Therefore,
Although this type of license completely excludes competition within the brand, it is also allowed. Third, between non-competitors
Exclusive licenses can generally be exempted. To attract licensees to invest in licensed technology, and
To enter the market in a timely manner, it is often necessary to grant an exclusive license to the licensee. If the licensee must
This is especially true for large-scale investments to develop licensed technology. When the licensee uses the licensed technology to obtain a commercial
When successful, denying this exclusivity will deprive the licensee of the success of the
The spread and innovation of technology cause damage. Therefore, such licenses generally do not interfere with competition law. Unless by
The licensor has a dominant market position and has obtained an exclusive license for one or more competing technologies, and the
Technology is the real source of competition in the market. In this case, the licensee may maintain an exclusive license.
In this case, it is necessary to conduct competition law analysis and necessary regulation. [185]
The European Court of First Instance seems to be looser than legislation in the judicial practice of exclusive licensing. In the Nungesser case,
The European Court of First Instance held that a public exclusivity license does not violate Article 81. In this case, the French Ministry of Agriculture
The funded INRA is a research institute that has developed a corn hybrid that can tolerate the cold climate of northern Europe
son. In order to circumvent the German law that persons outside Germany are not allowed to register plant cultivation patents in Germany
Law, INRA assigned its seed patent to Nungesser. In addition, INRA also gave Nungesser to
Authorization for the exclusive cultivation and sale of four varieties of this type of seeds in Germany. INRA also promised to no longer be in Germany
Authorize the same type and prevent the import of similar seeds from France to Germany, unless the object is Nungesser. Rear
Recently, other varieties of seeds have replaced the above-mentioned four varieties, and at least two distributors have imported the new varieties from Fran
Good variety to Germany. Nungesser successfully blocked this import by virtue of an exclusive agreement. European Court of First Instance
It is believed that this exclusive clause does not violate Article 81, because if there is no such clause to guarantee other licenses
People will not enter the authorized territory, and the licensee in another country will not be responsible for the training of new seeds in the German market
Education and development risks. In the subsequent Coditel II case, the European Court of First Instance held that the licensee should be granted
The exclusive license agreement for copyrights of domestic films does not violate Article 81, because the court held that the exclusive license is to ensure
The necessary means for copyright owners and licensees to obtain reasonable returns. However, the court also pointed out that an exclusive license also
It may constitute a violation of Article 81, for example when the permit unnecessarily creates barriers to entry, or the fee is high
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For reasonable return on investment, or monopolization time is too long. In the Erauw-Jacquery case [186] , the early European
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The trial court supported an exclusive license for absolute territorial protection of seed patent licenses. The reason is that the restriction
It is necessary to ensure the patentee’s control over the disseminators of basic seeds, because basic seeds
Compared with general qualified seeds, more specialized processing is required. [187]
However, some scholars pointed out that the above cases are not representative. Nungesser case and
The Erauw-Jacquery case is all about the patent licensing of plant seeds, especially in the Erauw-Jacquery case
The analysis of basic seeds is even more unique, so it cannot be inferred from the above cases.
The EU has a relaxed attitude towards the exclusive licensing of intellectual property rights. [187] In contrast, the European Commission
Establishing the focus and pursuit of a unified European market, adopts a stricter attitude towards monopoly licenses, because
Occupation permits are always associated with geographical divisions, and this undoubtedly hinders goods and technology in the European market.
Free circulation of the field.
In general, the European anti-monopoly law analysis of exclusive licenses is based on the extent to which the exclusive license is
Whether it is on the basis of guaranteeing the interests of the licensor, especially the licensee, in the intellectual property license.
5.2.2.3 Relevant legislation in Japan
In Japan, even regional restrictions that do not involve intellectual property rights are not inherently illegal. Japan
When the Fair Trade Commission examines the legality of the relevant geographic restrictions, it must consider the restrictions caused by the conduct
The two aspects of sex and the manufacturer’s market position were examined. Generally speaking, only when the price of the product may be limited
It was considered that Article 19 of the Japanese Anti-Monopoly Law was violated when the regulations were maintained. [120] Therefore, the Japan Fair Tra
The 1999 “Guide to the Anti-Monopoly Law for Patent and Know-how Secret Licensing Agreements” of the Commission held that patent licensing
Kaka only restricts the licensed area to a specific area in Japan, which is generally just an act of exercising intellectual property rights.
It is not an unfair transaction that violates the Anti-Monopoly Law. But sometimes when the licensor’s patent rights have been exhausted
In this case, the licensor’s restriction on the sales area of the licensee’s patented products is not an act of exercising patent rights.
It needs to be based on the facts of the case and the second part of the "Basic Circulation and Trading Customs Guide"
The provisions of “restrictions related to the domain” shall judge the influence on the order of market competition and the hindrance of fair competition.
In the know-how license agreement, the area where the licensee can use the know-how is restricted. In principle, it shall not
It is an unfair trading method. However, the licensor shall provide
The geographical restrictions must be based on the facts of the individual case and the second part 2-3 of the "Basic Circulation and Trading Customs Guid
The provisions of “restrictions related to the sales area of the circulation industry” have an impact on the order of market competition and on fairness.
Competition hinders judgement. [188]
5.2.3 Analysis of the Anti-Monopoly Law of Exclusive License and Territorial Restriction in Intellectual Property Licensing
5.2.3.1 General analysis of exclusive permission and geographical restrictions
First of all, it must be affirmed that exclusive permission and geographical restrictions will have a positive effect, which is mainly reflected in the
The protection of the licensee’s investment and the resulting incentives for the licensor to license externally. Because if not
The limitation of exclusive permission may be wronged by the licensee based on other licensees’ concerns about “free-riding”
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Licensing technology-related products or services for construction and investment, resulting in the licensed technology being unable to be produced and so
Maximize the use of the sale, and even lead to the failure of the marketization of the licensed technology. At the same time, in general,
Exclusive licensing will also enable consumers to enjoy better services and products, and improve consumer welfare. ①
Exclusive licensing and territorial restrictions arouse the attention of anti-monopoly law mainly because they may have the following negative effects
Should: First, the most direct effect of exclusive licensing is to eliminate similar products or services that use the intellectual property rights
Competition between. In particular, an exclusive license, which produces or sells and uses the technology exclusively by the licensee
The effect of the product or service of the company completely excludes this particular market (that is, the product or service that uses the intellectual prop
Market). If the intellectual property in this technical field has a fairly high degree of advancement
Or uniqueness, or there is no other competitive technology within a certain period of time, the competition in the product or service market
Completely ruled out. Secondly, exclusive licenses are often associated with geographical restrictions, while the
Territorial restriction is a common restrictive clause. The territorial restriction clause grants the exclusive right of a certain area to a certain
Specific licensees, or restrict a licensor to enter a specific area with other licensees or licensors
Competition. Almost all geographical restrictions are restrictions on competition. This kind of clause is very restrictive on competition.
Obviously, the exclusive license may therefore manifest itself as a division of the market in practice. Again, in practice, exclusivity
However, agreements often include non-compete clauses, which prevent the licensee from competing
The acquisition, use, and sale of products or services containing competing technologies, so that such technologies
Competition in the market has a negative impact. Finally, if the exclusive agreement is concluded between horizontal competitors,
It is very likely to cause horizontal restrictions on competition, such as market division, which is specifically prohibited by the Competition Law.
5.2.3.2 Analyze the reference factors of exclusive permission and geographical restrictions
Based on the above general analysis of exclusive permission and geographical restrictions, the principle of reasonableness must be adopted for such r
For the analysis of anti-monopoly law, the following factors can be specifically considered:
First, the market power of the licensor and the licensee. According to the theory of the Chicago School, an exclusive license
The strongest defense of reasonableness is to pass an exclusive license, which provides the licensee’s application and market
Market promotion investment provides necessary incentives and returns. Although competition within the brand is sacrificed, as long as there is a product
For the competition between the cards, its positive effect on the competition is greater than its negative effect. ②It can be inferred from this: being anti-mono
The premise of the exclusive license permitted by the law is that there is competition between brands in the relevant market. If the licensor or
The licensee already has a considerable degree of market power, so the competition between the brands is almost non-existent, then the right
The premise of the rationality defense of the exclusive license also does not exist. Because whether the exclusive license provides for the licensor or the lic
Provided the degree of technological advancement or sales input stimulation, if a product or service does not exist in the market
In the competition between brands, there is no intra-brand competition, which is equivalent to completely eliminating competition in the market.
① The post-Chicago school is controversial about allowing vertical restrictions based on the "free rider" theory to always promote consumer welfare. For example if
Based on vertical restrictions, retailers are required to provide excessive service quality, which may satisfy a small number of consumers who require high-quality services, but for most consumersFor consumers, generalized services are enough. Therefore, services beyond the general level are considered to be harmful to this part of consumers.② There are many criticisms of this theory. For example, through empirical analysis of JEA brand jeans, it is proved that in the presence of competition within the brand,Consumer welfare is more .
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This is something that the anti-monopoly law cannot tolerate. The same analysis also applies to the licensor or the licensee who does not have
The market is prepared for market power, but the market is a highly oligopolistic market, and the licensor is one of them. Because
In this case, an exclusive license may also be used to achieve substantial market demarcation behavior. So when
When the licensor or licensee has market power, it is generally considered that an exclusive license violates the anti-monopoly law.
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Second, whether there is a competitive relationship between the licensor and the licensee. Assess the economic effects of exclusive licenses,The most important step in evaluating its legitimacy is to determine whether the effect is mainly vertical or water.
flat. For the permission restrictions whose effects mainly occur on vertical relationships, analysis is carried out based on the principle of reasonableness.
The licensing restrictions that restrict competition in horizontal relationships may be inherently illegal. [12] The effect of judging permission is
Whether it is vertical or horizontal, it mainly depends on whether there is a competitive relationship between the licensor and the licensee. If promised
There is no competitive relationship between Keren and the licensee. For example, the licensor’s main business is research and development, while the lice
To purchase the licensor’s technology for the manufacturer, the licensing arrangement mainly affects the acquisition of complementary relationships, that is
Vertical effect; if there is no license, the actual relationship between the licensor and the licensee in the relevant market
It may be a potential competitor, and the effect produced by the licensing arrangement is regarded as a horizontal effect.
Third, whether to have one-way or two-way exclusive license. One-way license can generally be regarded as the transfer or transfer of rights,
Because it only allows the licensee to use the licensed intellectual property within its limited scope. If the permission is not available
Restrictions on the geographical scope or the field of use, it is closer to the economic effect of the transfer and does not harm market competition.
Harmful. Regarding an intellectual property right, whether it is an exclusive license or a transfer, according to market rules, it can always
Enough to maximize the utilization efficiency of the intellectual property rights. Therefore, the order that has the same effect as the transfer of intellectual p
A one-way exclusive license between the two parties shall generally be regarded as valid. [12] Two-way exclusive license is essentially
A kind of cross-licensing. Therefore, in the analysis of competition law, it is necessary to consider the meaning of cross-licensing in competition law as we
It is necessary to consider the meaning of the competition law of the exclusive license. Generally speaking, a two-way exclusive license is often regarded a
Negotiation rather than a vertical agreement. If the two parties are in actual or potential competition before the establishment of the licensing relationship, t
This type of license often has the anti-competitive effect of dividing the market and is subject to stricter competition law review and regulation.
Fourth, cumulative effects and network effects. Evaluation of the anti-competitive style of restrictive clauses in intellectual property licensing
It is not only necessary to examine the impact of a single license agreement on the parties, but also from the technology market or product market.
To analyze the whole field. In some cases, even if a single exclusive license has limited negative effects on competition,
However, if such licenses have network effects or cumulative effects, their anti-competitive risks will be magnified. For example, if
Dry enterprises have similar technologies, and they have entered into exclusive licenses with their own licensees, and will exclusive licenses.
The horizontal division of possible geographical restrictions will constitute an actual market division, which is an inherently illegal restriction.
behavior. So that all competitive technological improvements and new methods are controlled in the hands of these companies, its effectiveness
The result is often the segmentation of the technology market. This has an anti-competitive effect compared to when there is no network situation.
The risk of ringing is greater.
Fifth, motivation. When judging whether an exclusive license can be used as a legal defense of "free rider"
When it comes to reason, the motivation of both parties is an important criterion for judging. Because the exclusive permission is for
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Eliminate the negative effects of “free-riding” the licensee’s investment in the licensed technology. In layman's terms, if you don’t
Is an exclusive license, the licensee may not actively invest in advertising, building goodwill, etc., because one
Once he has invested in these aspects, he is also used by other licensees to share the market, and the investment is relatively large.
Of licensees are not sure that they will get sufficient returns. Therefore, based on the above analysis, the exclusive permission is generally
It is proposed by the licensee to guarantee its own future benefits. If an exclusive license is provided by the licensor
Out, the licensor’s motivation is questionable, because from the licensor’s perspective, although an exclusive license can be
A higher license fee is charged, but in any case, the more licensees there are, the more benefits the license object has.
Therefore, the exclusive license proposed by the licensor often contains countermeasures such as dividing the market, limiting output, and increasing price
Competitive risk.
Sixth, the validity period. For an exclusive license, as mentioned above, it is mainly to protect the licensee’s
It is necessary to invest to avoid “free-riding” behavior. Therefore, both the United States and the European Union pay attention to an exclusive license.
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Whether there is a time limit and how long. From the perspective of competition law, whether it is within the brand orThe existence of competition among brands can always promote the improvement of efficiency. Therefore, the sacrifice of intra-brand competition should b
The licensee will be granted an exclusive license within a period of time to ensure that the licensee can fully recover the investment.
Reported that it is no longer reasonable to continue to restrict competition within the brand beyond this reasonable period. based on the above analysis,
An exclusive license with a time limit has lower anti-competitive risks than an exclusive license without a time limit, and it is easier to obtain antitrust laws
Allowed.
5.2.4 Anti-monopoly legislation suggestions on my country's exclusive license and geographical restrictions
Article 13 of my country’s "Anti-Monopoly Law" stipulates that it is forbidden for business operators with a competitive relationship to reach the foll
Agreement:...(3) Segmentation of the sales market or raw material procurement market;... Judging from the provisions of this law, I
China’s current anti-monopoly laws and regulations on market segmentation are mainly limited to horizontal market segmentation.
It seems that there is no regulation, unless the all-round clause of Article 14 is applied: the anti-monopoly law enforcement agency of the State Council
Other monopoly agreements.
From the actual situation, due to exclusive permission and geographical restrictions (especially exclusive permission) objectively there are
For the benefit of licensees, my country, as a technology importing country, generally welcomes such restrictions. And row
Restrictions such as other licenses are conducive to improving my country’s ability to develop and utilize technology and improve the overall service indus
Quality, so, in general, this kind of restriction should have more advantages than disadvantages in our country.
Relaxed attitude. However, we should still pay attention to the competition,
Damage to innovation and consumer welfare.
In view of the above legislative and practical background, this article believes that the
In order to implement anti-monopoly laws and regulations, clear rules of exclusion should be formulated, that is, clearly stipulating that
The types of exclusive licenses and geographic restrictions are generally regarded as permitted for other exclusive licenses and geographic restrictions.
Unless there is an obvious harm to restrict competition based on the rationality analysis. The specific legislative design can be: (1) Xu
When Keren or the licensee has market power, exclusive licensing is not allowed; (2) When the intellectual property licensing agreement
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The parties involved in the negotiation have a competitive relationship, and a two-way exclusive license often severely restricts the competition between th
Allowed; (3) Other agreements that may or have resulted in serious harm to competition. In accordance with the last wording clause
In the analysis, the factors that can be considered include network effects, cumulative effects, the validity period of the agreement, specific industrial polici
Policies and the motives of the parties.
5.3 Anti-monopoly legislation on production restriction clauses in intellectual property licensing
5.3.1 Definition of output restriction in intellectual property licensing
Generally speaking, output restriction refers to the restriction of the production quantity and sales quantity of a certain product through an agreement.
quantity. From an economic perspective, the parties involved in the output restriction hope to achieve the same goal as the minimum price restriction.
Target: Maintain the price of the product at a higher position by reducing the output. But in reality, one-way or two-way production
Whether the quantitative restriction has a negative impact on competition also depends on the parties’ market power, regardless of the parties’
Is it a competitor? If their market share is small, even if the output is restricted, other competitors
Production will soon be expanded to compensate for the shortage of market supply caused by production restrictions. Therefore, it is considered
The production restriction agreements that have a negative impact always refer to those that have considerable market share or market power.
Output restrictions among competitors. Conversely, the impact of output restrictions on the market is also a measure of the company’s market momentum.
An important standard of power, such as the famous ORT (output restriction test) standard. [189]
The output restriction in intellectual property licensing not only has the universal meaning of competition law, but also contains its particularity.
The general reason for output restriction in intellectual property licensing is to ensure the interests of the licensor. Through the production limit,
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The product of the licensee can be maintained at a relatively stable price, so that the licensor can guarantee from
The profit is shared in the profit of the licensee. In this respect, the restriction of output reflects the encouragement of licensors to license externally.
The positive effect of intellectual property rights has a positive effect on competition and innovation, because compared with non-licensing, external
Licensing is always more conducive to efficiency improvement and innovation.
5.3.2 Relevant legislation and practices of the United States and the European Union on output restrictions
5.3.2.1 U.S. legislation and practice
In the U.S. antitrust law, the restriction on production is generally considered to be an illegal act of its own.
A similar attitude is held towards the restrictions on production and sales in intellectual property licensing. Such as the 1995 "Intellectual Property Licensin
The Lars Guide believes that although in most cases, restrictive practices in intellectual property licensing must be adopted
Reasonable analysis, but there are still some behaviors that are considered illegal in themselves, including production restrictions. guide
3.4 Regulations: In most cases, various restrictions in intellectual property licensing arrangements should be based on the principle of reasonableness
to evaluate. ...But in some cases, the court decided that the "nature and inevitable result of the restriction are as
This is obviously anti-competitive", so it should be deemed illegal by itself, and there is no need to further study the restrictions.
The competitive effect that can be produced. ……Restrictions that are judged to be illegal are: open fixed prices, production limits
Market divisions between control systems and horizontal competitors, and certain collective boycotts and maintenance of resale prices.
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However, in judicial practice, the attitude towards the production restriction clauses in intellectual property licensing is more serious than that of the g
Loose. In the famous Nintendo case in 1990, the Federal Circuit
Licensing terms for human output restrictions. In this case, Nintendo is the monopolist of home video games, possessing 80
% Of the market share, and its main product is Nintendo Entertainment System (NES), which contains
Patented security system. Atari is licensed by Nintendo to develop games for NEC
And sales. In the license agreement, Nintendo specifies the number of game cards that Atari sells in the United States.
Regarding this point, the Federal Circuit held that it did not constitute an infringement of the law per se, and the United States
v. Parker-Rust-Proofing Co case, Q-Tips v. Johnson & Johnson et al. in 1951
Support this conclusion. ①[190]
5.3.2.2 EU legislation and practice
The EU has included “core restrictions” on the output restrictions in intellectual property licenses, but when specifically applicable, use
The principle of reasonable analysis is used to distinguish. Article 4 1(b) of Regulation 772/2004 stipulates that as a party to the agreement
In the case of a competitive enterprise, for other companies that are directly or indirectly under the control of
A combination of other factors and an agreement with the following purposes shall not be subject to the exemption provided in Article 2: ... to limit produc
However, it is not included in the non-two-way agreement to the licensee, or in the two-way agreement, only one of the licensees
The output of contract products produced by people is restricted. Explained in subsequent guidelines as limiting output as a core limit
Only refers to the two-way output restriction between competitors. The two-way output restriction referred to here does not only refer to direct restriction
The production volume and sales volume of both parties, as well as other incentives that weaken both parties to expand production
For example, the parties agree that if the output exceeds a certain standard, they must pay the other party
For a certain amount, this kind of agreement is also a production restriction clause. If a competitor agrees to implement a two-way output restriction,
The purpose of the agreement and its possible consequences is to reduce the output on the market, and the consequence of reducing the output is the price.
This will greatly damage consumer welfare.
For non-two-way output restrictions between competitors, it is necessary to analyze the different treatment of the parties’ market shares.
If the market share threshold of 20% is not exceeded, production restrictions can be exempted in batches. More than 20% of cities
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The situation of market share is analyzed reasonably. The guide points out that if the party has a lot of market power,Limitations of the licensee’s output may harm competition, so it must be
(3) Weigh the various defenses listed. Because the parties have a strong market position
Under the circumstance, the competition between brands is not obvious, and the competition within the brand can be weakened through output restriction,
Due to the relatively large impact on market competition, it is generally difficult to exempt from 81 (3) reasons.
Regarding the production limit among non-competitors, if the market share threshold of 30% is not exceeded, you can get
Batch exemptions. In agreements between non-competitors, the main anti-competitive winds that restrict the output of licensees
① In this case, the licensor also stipulated other restrictions, such as prohibiting the licensee from exporting game cards outside the United States, and prohibiting the licensee from serving otherThe home game system produces game cards and the game cards must be purchased from the licensor. These restrictions have been supported by the circuit court and held that they do not violateContrary to antitrust laws.
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The risk is to reduce the intra-technology competition between licensees. The magnitude of this anti-competitive effect depends on Xu
Keren’s and the licensee’s market position, and the extent to which the output restriction prevents the licensee’s satisfaction
Demand for products incorporating licensed technology. On the other hand, imposing output restrictions among non-competitors can
Promote the dissemination of technology, which also has the effect of promoting competition. [175] Therefore, for this type of output restriction, generally
Follow the principle of reasonableness to carry out relatively loose regulations.
5.3.3 Analysis of Anti-Monopoly Law on Production Restriction Clauses in Intellectual Property Licensing
In a general sense, companies hope to produce as many products as possible under the premise of economies of scale and
Sell in order to maximize profits. Therefore, if enterprises or enterprises limit production, it often means
Due to the restriction of competition and the increase of prices, this not only causes the loss of social efficiency (inefficient use of resources),
Moreover, for consumers, prices will rise and consumer surplus will be plundered. Therefore, production limits are subject to anti-monopoly laws.
In the initial stage, it is the key regulatory object, which is considered to be its own illegal behavior. However, in the intellectual property license
The production restriction in China has its particularity: this restriction may cause general harm to competition and damage to consumption.
The effect of consumer welfare, but it may also have advantages for innovation and consumer welfare.
First of all, the positive effect of output restriction in intellectual property licensing is manifested in the possibility of promoting the dissemination of
The growth effect of high-tech innovation on social efficiency. Limit the output in the intellectual property license, if it is a single
There are often two circumstances: (1) The licensor voluntarily limits its own output. Licensor and Licensee
Is a competitor or potential competitor, the potential licensee is often worried that it will not be able to compete with the licensor.
Are reluctant to enter the industry. At this time, if the licensor is willing to limit his
If the market space is determined, the licensee will enter the market more actively. On the other hand, the reason why the licensor voluntarily
Limiting production is often due to its limited use of technology due to its production capacity and raw material reserves.
If it is possible to obtain extensive use of the technology and generous use fees through external licensing, it will also be a good option for the licensor.
Profitable. Under this circumstance, the production limit will promote the increase of licensees and the widespread use of technology, from
Improving the economic efficiency of the entire society has objectively strengthened competition. (2) The licensee restricts output. May
Keren may also be unwilling to face the situation where the licensee is his competitor. In this case, if he can
Limit the output of the licensee and guarantee the licensor’s own market space, so the licensor’s external license
Enthusiasm will increase. Similarly, the widespread use of technology is always beneficial.
Secondly, output restrictions may also have the effect of harming competition and harming consumer welfare. In the licensor and
If the licensee is not a competitor, the licensor restricts the output of multiple licensees, which may cause
Become a cartel between licensees, and even eliminate competition between licensees, which has a negative impact on consumer welfare.
loss. In addition, the two-way output restriction between the licensor and the licensee will have a similar effect.
Therefore, the rationality analysis must be carried out for the production restriction clauses in the intellectual property license. Active
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A trade-off between the effect and the negative effect, and consider whether the output restriction is necessary for a certain positive effectIndispensable. For example, it is generally believed that although a certain amount of market space reserved for the licensee is beneficial to its market
Access, but geographical restrictions can also achieve this goal, and in comparison, geographical restrictions are more important than production restriction
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The damage to competition and consumer welfare is minor.
5.3.4 Suggestions on anti-monopoly legislation on production restrictions in intellectual property licensing in my country
Article 13 of my country’s Anti-Monopoly Law stipulates: “It is forbidden for business operators with a competitive relationship to reach the followin
Breaking Agreement: ... (2) Restricting the production or sales of commodities; ..." In Article 14
The agreement does not provide for a production restriction clause.
In the current practice of technology licensing in my country, production restrictions are rare. At the same time, because
my country has a vast territory, a large population, and a huge market. Therefore, in the previous article, the market is reserved for production restrictions.
The rationality of the space is not suitable for my country’s current market situation, and my country’s anti-monopoly law has
The output restriction of the company is deemed to be illegal. Therefore, for the output restriction in the intellectual property license, if
It is due to the two-way output restriction of the licensor and the licensee due to the competitive relationship, and the suggestion is also deemed to be illega
Of course, it is also regarded as an infringement of the production restriction between licensees through multiple parallel license agreements.
Law.
5.4 Anti-monopoly legislation restricting the use of domains in intellectual property licensing
5.4.1 Definition of the field of use in intellectual property licensing
Use field restrictions are the most common restrictive clauses in intellectual property licensing. In layman's terms, the field of use
Restriction refers to the agreement to limit which products or services the licensee can use the licensed intellectual property
Rights, or how the intellectual property can be used. If the patent of a certain pharmaceutical method is also used in medicine, one
The license agreement only allows the use of the patent in human drugs, but not in the manufacturing process of veterinary drugs
The patent. Or a patented product that is only allowed for non-profit use, not for commercial use. or
The seed of a patented plant, only one-time purchase of the seed is allowed to plant the plant, and the use of the plant is not allowed
The harvested seeds of the plants are planted in cycles.
The field of use restrictions are defined differently in the United States and the European Union. In the European Union, the field of use restriction is
According to the technical characteristics of the licensed product ("technical characteristics of the licensed
product”) to limit the field of use, for example, whether a molding technology is used for the production of plastic bottles or plastic
The production of plastic spectacle frames; and in related cases in the United States, the meaning of the use field restrictions is broader, and
Including restrictions on the use of intellectual property products, such as requiring that a patented product can only be used once
Use, can’t be reused, and is also considered to be restricted by the field of use, or called use restriction (use restriction).
restriction). This article discusses on a broad basis.
5.4.2 Legislation and practice in the United States, Europe and other countries and regions on restrictions on the field of use
5.4.2.1 Relevant legislation and practice in the United States
In general, the United States has relatively loose restrictions on the use of intellectual property licenses: such restrictions
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Restrictions are subject to reasonableness rules and are effective under normal circumstances, unless unreasonable anticompetitiveness exists.
exist. [12] According to Article 2.3 of the 1995 Antitrust Guidelines for Intellectual Property Licensing, intellectual property licensing
The field of use, geographic area, and other restrictions in the
The commercialization and dissemination of rights products, and the development of other applications of licensed intellectual property rights. this
These restrictions may also incentivize licensors to issue licenses. Therefore, the scope of use in intellectual property licensing is limited
System, the guide uses rationality rules for analysis.
In 1938, General Talking Pictures Co. v. Western Electric Co.
In the case, the licensor will grant the licensee the manufacturing license for the patent of the vacuum tube loudspeaker
"People" field, to distinguish it from the "commercial" use of movie theaters and broadcasters. The Supreme Court of the United States applies reasonable
The sex rule analyzes this license agreement, considers it to be legal, and considers that the sale outside the private domain
It is not licensed, which constitutes patent infringement. In the judgment, the court stated: “The patentee
The restrictions on the conditions of interest fall within the scope of the return for the grant of patents. [191]
In the 1992 Mallinckrodt, Inc. v. Medipart, Inc. case [192] , the use of patents
Restrictions on application areas are pushed to a more relaxed environment: that is, regardless of the patent exhaustion principle, as long as the contract res
In the field of use, the restriction is effective. The basic facts of the case are: the plaintiff Mallinckrodt owns a
The patent for the tube/sprayer device is sold under the trademarks Mallinckrodt and Ultra Vent. The device
The top of the product is marked with the Mallinckrodt trademark and is marked with the words "Single Use". The defendants in this case will each
The devices used in each hospital were recovered and disinfected before being returned to each hospital for reuse.
Mallinckrodt believes that the “one-time use” marked on the device is a “patent license agreement” that restricts
The device was used once, and the defendant reprocessed the device for repeated use, causing the hospital to violate
Because of their permission, the defendant constituted a deliberate infringement. The District Court of First Instance held that according to the first cancell
The principle of exhaustion, Mallinckrodt has no right to rely on the patent for the device after the device has been sold
And restrict its use. However, the Federal Circuit Court of Appeals overturned the first instance judgment, holding that the District Court
The judgment is based on the patent law, and in this case, any restriction is meaningless, even if the restriction is based on
Other laws can be allowed. At the same time, it is pointed out that the principle of exhaustion of patents for the first time only applies to unconditional
Licensing or selling. If the sale of the device is justified under relevant laws (such as patent laws), then
Any violation of this restriction can be corrected through patent infringement litigation. The court stated: "Exhaustion
Then...not suitable for conditional sales or licensing. " [192]
In the 1997 B. Braun Medical Inc. v. Abbott Laboratories case, the federal government
The Circuit Court once again used this inference, arguing that the key question is whether a restrictive clause is not allowed to
It broadens the scope of the patent right in terms of physical or time and has an anti-competitive effect. It also points out that there is only tying
Enforcement or enforcement beyond the patent right belongs to the above-mentioned qualitative definition, and restrictions on the field of use are usually le
Recently, the Federal Circuit appeared to be more tolerant of restrictions on the use of domains. In 2006,
In the Monsanto Co. v. Scruggs case, the court stated: “According to the patent law, the patentee has the right to exclude
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Others manufacture, use or sell patented products, and the scope protected by the patent law includes limited licenses, collections
Take license fees, etc. Restrictions on the field of use-that is, the patent is allowed to be used in a field and excluded
Use in other fields-also within the scope of patent authorization. " [194]
However, some scholars pointed out that although in the General Talking Pictures Co case and Mallinckrodt
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Both the cases supported the limitation of the use field, and the latter also cited the former as the basis in the judgment, but the joint
The relaxed attitude of the State Circuit Court on restrictions on the field of use essentially deviates from the purpose of the Supreme Court. exist
In the General Talking Pictures Co case, the reason why the Supreme Court supported the plaintiff’s infringement lawsuit was that
Because the defendant’s production activities have directly violated the restrictive clauses in the license (that is, the license granted by the plaintiff to the de
It was used in the production of loudspeakers in non-commercial areas, and the defendant directly produced commercial use), therefore,
The defendant is like a person who produces patented products without a license. Of course, he can use patent infringement
To impose sanctions. In the Mallinckrodt case, the first sale of the spray device did not violate the
A one-time license contract, that is, the first sale is legal. Moreover, in the Supreme Court
In the judgment of the General Talking Pictures Co case, there was nothing about the
The terms of the consumer’s use of the field limit does not apply to the presumption of the principle of exhaustion. [195] Other scholars pointed out that some
The use method restriction in the Mallinckrodt case is regarded as the real use field restriction clause without sufficient reason.
Depend on. Restrictions on the way of use are usually restrictions on output, and this is the antitrust law has always been opposed to
of. On the contrary, the restricted use area is where the patentee tries to obtain all of the patented inventions from various applications.
Value; this usually has little or no disadvantage to the competition. The restrictions on usage are more restrictive than the real
Restrictions on the field of use are more destructive to competition, so it should be subject to stricter supervision. [12]
Therefore, in the U.S. license agreement on restrictions on the use of domains, the controversial issues mainly lie in
Regulate the sales and use of intellectual property-related products through the use field restriction clauses, especially for the final
Consumer restrictions, such as not allowing repairs to a certain patented machine, and not allowing the use of patented plants to grow
Seeds harvested from seeds, etc. In this case, does the principle of exhaustion of intellectual property take precedence over contractual restrictions?
The trade-off is a comparative problem. However, in judicial practice, restrictions on the field of use and restrictions on the way of use are all
More relaxed. This also shows the current US stance towards intellectual property rights.
5.4.2.2 Relevant legislation and practice in the European Union
Unlike the United States, the European Union has a narrower meaning of restrictions on the field of use. The 772/2004 regulations and guidelines
The use field restriction is only defined as: the use field restriction is to restrict the licensee so that it can only be used in one or
Multiple specific areas of use use the licensed technology, and the areas of use must be determined based on the licensed product
(Identified) and meaningful (meaningful) technical characteristics to objectively define. And because of the regulations
Only applicable to the technology transfer agreement between two companies, so the use restrictions for the end consumer——
For example, the Mallinckrodt case mentioned above-it cannot be regarded as a restriction on the field of use.
Exhaustion of benefits or reasonable use to regulate.
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For a narrow field of use restrictions ① , 772/2004 regulations and guidelines that: field of use restrictions may be
Promote licensors to license others to use their technology outside their main areas of focus, thereby generating pro-competitive
Effect. If the licensor cannot prevent the licensee from being in the field where the licensor himself uses the technology, or
If the value of the technology is not well-determined, the licensor may not carry out the license, or may charge
High license fees. Therefore, restrictions on the field of use will be conducive to innovation as a whole. Under this premise,
The regulations divide the legality of restrictions on the field of use into two types: restrictions between competitors and restrictions between non-competit
To stipulate:
For actual or potential competitors' use field restrictions, such as not exceeding 20% of the market share
Threshold, you can get a batch of exemptions. The most important anti-competitive risk of using domain restrictions between competitors is
Since the licensee is no longer a competitor of the licensor outside the field of use, whether it is cross-licensing or
One-way licenses may cause a decrease in the output of the licensee outside the field of use, especially in asymmetrical
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In the restrictions on the field of use of ② , there may be a situation in which the market is divided between competitors.
For non-competitors’ use domain restriction clauses, if the market share threshold of 30% is not exceeded,
This restriction clause can be exempted in batches. In an agreement between non-competitors, the licensor protects itself
Leave one or more product markets or technology use areas. Such use area restrictions usually do not restrict competition.
Either it will increase efficiency. This incentivizes the licensor to license the technology in areas where it does not intend to use the technology personally.
Can be used by others, which can promote the spread of technology. [185]
In judicial practice, the Commission of the European Communities has gradually accepted this view that the
The view that restrictions on the field of use have the effect of promoting competition. In the Delta Chemie and Jus-Rol case, the European Community
The Committee believes that the limitation of the field of use is not an illegal act under Article 81(1) of the Rome Treaty. Delta
In the Chemie case, the Commission of the European Communities considered that the licensor was free to dispose of its know-how and restrict the use of
It's just a lawful exercise of rights. In the Jus-Rol case, the European Commission also agreed to divide the product into independent
The view that the product market is licensed separately. In both cases, the Commission of the European Communities held that the exclusive license
The combination with the field of use encourages the licensee to focus more on the production and sales of contract products, which is beneficial to the pro
Improved quality and quantity. [188]
5.4.2.3 Relevant legislation and practice in Japan
Similar to the U.S. and Europe, Japan also has a relaxed attitude towards restrictions on the use of fields. The 1999 “Patent
“Guide to the Anti-Monopoly Law in the Patent License Agreement” believes that in the patent license agreement, the licensor will be
The licensor’s implementation of the patent (manufacturing, use, sales, etc.) is restricted to certain technical fields, in principle
It is not an act of unfair trading. However, if it has nothing to do with the limitation of the technical field, the patent property of the licensee
Restrictions on product sales and customer groups cannot be considered as an act of exercising patent rights.
① That is to say, it does not include the restrictions on the way of use, and the restrictions on the field of use that are determined solely from the characteristics of the technical use.② Asymmetric use field restriction refers to: allowing one party to use the other party’s technology in a product market or technology use field, while allowingThe opposing party uses the opposing party’s technology in another product market or another technology use field.
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Analyze the relevant viewpoints of object restrictions. In the know-how license agreement, the licensor will be the licensee
Restrictions on the use of licensed technology in certain technical fields are not, in principle, unfair transactions. but
Yes, if it has nothing to do with the restriction of the technical field, the sales field of the products produced by the licensee using the technology
And the restrictions on the customer base will be analyzed in accordance with the relevant viewpoints on the restrictions on sales objects. [188]
5.4.3 Analysis of anti-monopoly law on restrictions on the use of intellectual property licenses
5.4.3.1 The positive significance of the limitation of the field of use for innovation and efficiency
Generally speaking, restrictions on the field of use are similar to territorial restrictions and exclusive licenses.
Rights are decomposed from various angles, and multiple authorizations are overlapped to obtain generous returns, which greatly stimulates
Technological progress and innovation. To what extent can the licensor benefit the licensor through the use field restriction clause?
It depends on the value of the licensed intellectual property itself. Generally speaking, the more basic or universal an intellectual property
Universal, the wider the scope of its use, which will bring more benefits to the licensor. For example, a steel
Patented iron casting technology, which can be used in the manufacture of certain automobile parts and motorcycle parts
It can also be used in the manufacturing process of other steel products, and these uses are granted separately.
Grant different licenses and limit the fields of use, that is, license the licensee to use in the manufacture of auto parts
The patented technology does not mean that the licensee can switch to using the technology in the production of motorcycle parts.
Techniques can bring extremely rich returns to the licensor. An excellent novel may be adapted into a movie
For scripts, or drama scripts, or different types of drama scripts, each license is an independent license. opposite
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In other words, if the applicability of an intellectual property is narrow, for example, a patented component can only be used for large
The type of harvester has no other purpose, and the limitation of the field of use is only a theoretical problem.
Practical meaning.
From the perspective of the licensee, although there may be the use of the same technology for the production of different products
Situations, such as the use of a patented technology to manufacture both human and veterinary medicines. However, in most cases
Under the circumstances, due to the market trend of specialized division of labor, the licensee uses the licensed technology for a certain characteristic.
In certain areas, for example, a company that manufactures automobiles is unlikely to produce motorcycles at the same time. Therefore, a broad market
If the intellectual property rights of the future cannot overlap the license by restricting the field of use, or for the licensor,
The market value of the intellectual property rights has not been fully utilized, or the licensor has been
The licensor is unable to pay excessive royalties and refuses the license, both of which are harmful to social efficiency.
Therefore, the restricted use area is to realize the use value of intellectual property rights and grant intellectual property rights in accordance with mar
The permission method that people fully return is inherently reasonable. By allowing intellectual property owners to choose the best
The licensee also asks for appropriate prices in their respective independent areas of use, and restrictions on use areas help in all
Provide an economic reward close to the value of the licensed intellectual property in the relevant use field. [12]
5.4.3.2 Harm to competition caused by restrictions on the field of use
Although the use field restrictions have obvious positive effects, the use field restrictions are in the following situations:
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It will also arouse the concern of the antitrust law:
First, when the field of use restriction is applied to the final consumer, it is often used as a tool or price discrimination tool.
Tools for complete control of the relevant market, and these situations will cause the concern of antitrust laws. Such as Microsoft used to do
There is no substantial difference in content and function between operating software for public use and operating software for personal use.
Soft will designate its use areas and charge different prices. Therefore, some scholars pointed out that the use of domain restrictions
The principle of exhaustion of intellectual property rights should be combined and used for direct producers or operators, but not for indirect consumption
By. Second, restrictions on the field of use among competitors. Restrictions on the field of use between competitors may cause actual
Qualitative market segmentation and reduced output. The greatest anti-competitive risk with restrictions on the field of use is that the licensor can
Maintain an exclusive position in a certain field of use and exclude other competitors. If it is between competitors
Cross restrictions, and the areas of use specified by such restrictions are different. For example, A and B each have a technology,
And cross-licensing, A can only use B’s technology in the A field, and B can only use A’s technology in the B field.
Without this restriction, both A and B can use the two domains of AB under cross-licensing conditions.
Technology, the use of domain restrictions has a negative impact on competition. If this impact leads to no legitimate business
Under the business reasons, the reduction of output, this restriction essentially constitutes an agreement to divide the market. Third, the field of use
Restrictions are often combined with exclusive licenses, which may lead to barriers to entry of competing technologies. Especially in licensing
In the case of technology having a high market share, restrictions on the field of use may lead to abuse of market power.
5.4.3.3 Classification analysis of restrictions on use areas
First, the analysis of the anti-monopoly law that restricts the narrowly defined fields of use. For narrowly defined areas of use restrictions,
This article believes that its impact on competition should be measured from the following aspects: (1) Distinguish between competitors
Domain restrictions and use domain restrictions between non-competitors. This is a narrow use field restriction imposed by the United States and the Europ
Analysis of universal competition law. Generally speaking, restrictions on licensing between non-competitors have a negative impact on competition.
There is little or no noise. Since the development and utilization of a certain intellectual property rights in different fields of technology use need to establis
The same production line, plant, equipment, sales network, etc., so even if there is no
It is unlikely that licensees in the same field of use will compete with each other. And it’s okay to allow this restriction
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In order to maximize incentives for intellectual property owners to license externally and provide more returns for innovative activities, so
Restricting the field of use among non-competitors does not violate the antitrust law. Restrictions on the field of use between competitors need to
Make a reasonable analysis. Because the restriction between competitors is horizontal restriction, when this restriction is used in
When competitors divide the market or establish cartel tools, it is regulated by antitrust laws. E.g,
If the licensor licenses a certain area of use to the licensee and reserves another area of use to himself, it may
It has substantially weakened the competition between the two parties, and achieved the purpose of carve up the market in the form of a license agreement.
In a reasonable analysis of the restrictions on the field of use between competitors, comprehensive consideration can be given to whether the restrictions on
Exclusive, whether it is two-way, whether it is symmetrical and other factors. Generally speaking, a two-way asymmetrical
Exclusive use field restriction clauses often mean that the division of the market is prohibited by the anti-monopoly law. (2)
Measure the market power of the parties to the license agreement, especially the licensor. A vertical agreement, if considered
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Legitimate is often based on the view that competition between brands is more important than competition within brands. Therefore, there are brands
Competition between the two is the prerequisite. If an intellectual property license, the licensor has a dominant position, through exclusivity
The license combines the restrictions of the use field to divide the market, and there is no inter-brand in each use field.
Competition, such restrictions on the use of areas will violate the anti-monopoly law. Of course, it must be emphasized that this illegality
It is not directly caused by restrictions on the use field, but by the implementation of exclusive licenses in each field of use.
Second, the anti-monopoly law analysis of restrictions on use. In the United States, restrictions on use are also
The category is within the scope of restrictions on the field of use, ① and with the preference and support for intellectual property rights,
When permitting others to use intellectual property rights, it also adopts a loose or even laissez-faire attitude to restrict the use of intellectual property right
It is necessary to conduct a competition law analysis for this restriction. This article believes that the competition law analysis of restrictions on use
The binding force of the license agreement as a contract and the principle of exhaustion in intellectual property law should be clarified (the principle of firs
Applicable level between. (1) Produced and sold by the manufacturer authorized by the patentee. . In the case of a patented product,
The principle of exhaustion (first sale principle) should be applied first. The restrictions on the way the licensee can use in the license agreement,
As long as it complies with the provisions of the narrow scope of use in the previous article, it is deemed not to violate the anti-monopoly law. but,
The restrictive clauses in the license agreement can only act on the licensee. Once the patented product is sold, the license
The limitation of people does not extend to the buyer. (2) Infringements filed according to the use method restriction clause in the license agreement
The litigation of the right should first be measured by applying the intellectual property law, that is, if there is no such restriction clause, whether the use sh
Legal. If the answer is yes, the violation of this restriction does not constitute an infringement of intellectual property rights. Because,
No contract can make an otherwise legal behavior illegal. In the intellectual property license agreement, there may be
The rights of intellectual property rights are now extended through contractual restrictions, but this is not allowed. [195]
5.4.4 Suggestions on anti-monopoly legislation regarding restrictions on the use of domains in intellectual property licensing in my countr
Generally speaking, the positive effect of narrowly-defined domain restrictions is relatively certain: it is conducive to the promotion of technology
Transform into actual productivity, give full play to the improvement of social efficiency brought by technological innovation and progress; at the same tim
It provides sufficient stimulation for intellectual property owners to innovate and create activities. In my country’s current independent innovation policy,
As some scholars have pointed out, it is not the lack of leading scientific research results, but the transformation of technological achievements into produc
The area is relatively weak, and restrictions on use areas should be able to play a more active role in this regard. on the other hand,
In the process of technology introduction, the narrowly defined use field restrictions will not have obvious anti-competitive effects, and can
In order to stimulate the licensing and application of advanced technology in our country, the use
Is more positive and positive. my country’s anti-monopoly law should respond accordingly:
The use field restriction clauses are generally not regulated. Only when there is a competitive relationship between the licensor and the licensee,
Use domain restrictions to become prohibited behaviors, apply the principle of reasonableness for analysis, and consider
Factors include the market position of the parties, whether other restrictive clauses are used in a comprehensive manner, etc.:
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① There are theoretical controversies on this point. For example, Jay Dratler, Jr. believes that restrictions on usage methods are more appropriately classified as output restrictions. But whenIn U.S. judicial practice, it is generally regarded as a limitation on the field of use.This restriction on repeated use also includes whether it can be repaired, refilled or otherwise.
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First of all, the two-way asymmetric and exclusive use field restriction clauses between competitors often mean
The division of the market should be prohibited by the anti-monopoly law. Second, a licensor with a dominant market position may be licensed
Keren’s exclusive use of domain restrictions often means obstacles or even offsets to competition, and should be subject to anti-monopoly laws.
The prohibition.
5.5 Anti-monopoly legislation on price restriction clauses in intellectual property licensing
5.5.1 Definition of price restrictions in intellectual property licensing
The price restriction in intellectual property licensing means that the licensor requires the licensee to sell at a certain price
The product even requires the licensee to limit the resale price of the purchaser when selling its product. example
If the licensor requires the licensee (manufacturer) to sell the patented product to the wholesaler at a fixed price, and requires the
The manufacturer defines the price at which the wholesaler sells the product to the retailer. Therefore, the price limit may appear as two levels
Second: Limit the first sale price and limit the resale price. Generally speaking, the latter’s anti-monopoly regulations are the most
For severe.
In reality, price restrictions come in different forms, some stipulate a fixed price, and some stipulate the most
High prices, and some stipulate minimum prices, these are all price restrictions. The price is arguably the most
Important tools of competition and economic indicators. [196] Therefore, price restrictions have always been subject to anti-monopoly laws.
To strictly review and regulate. It doesn’t matter whether a restriction is vertical or horizontal: if it controls
The price at which an independent party sells goods or services is illegal by its nature. [12] Of course, economics
The author has conducted a lot of empirical analysis on the realistic possibility of price cartels, and believes that its harm is not as good as anti-monopoly
The influence of the law’s imagination is huge, [197] but in any case, the price limitation has received the highest degree of attention from the antitrust law.
And regulation. The price restriction behavior in intellectual property licensing is no exception, and it is generally considered to be illegal in itself. same
If it involves the maintenance of the resale price, it is also invalid according to the principle of first sale.
5.5.2 The legislation and practice of price restrictions in intellectual property licensing in the United States, Europe and other countries an
5.5.2.1 Relevant legislation and practice in the United States
The United States has always held a negative stance on price restrictions, because price restrictions do endanger competition and harm consumption.
The typical behavior of consumer welfare is difficult to tolerate from any angle. Licensing of intellectual property rights
The same is true for price restrictions in China. One of the "Nine Nos" principles of the U.S. Department of Justice in the 1970s
It is a fixed price. The 1995 Antitrust Guidelines for Intellectual Property Licensing still insisted on this attitude. but
Yes, it’s worth noting that this guideline only stipulates; “If the product has been put into the trade channel and has been
Owned, it is illegal to maintain the resale price. "That is, only a clear definition of resale price maintenance is made.
But it does not involve the direct price restriction on the licensee in the license.
In the early judicial practice in the United States, there was an exemption for price restrictions in intellectual property licenses.
manner. In the E. Bement & Sons v. National Harrow Co. case in 1902, the
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The US Supreme Court held that the fixed price cartel signed by the rights holders: According to the universality of the US patent law
In principle, the patentee has absolute freedom to use and sell this right,... the patentee and the licensee
The fact that any clauses signed to limit the production, use and sale of patented goods are not illegal, even if such clauses
The money maintains a monopoly or fixed price. [198] In addition, in the United States v. General Electric case
[199] and Columbia Pictures Corp. v. Coomer [200] , the fixed price clause was also recognized by the court
Can. In the General Electric Company case, the Supreme Court allowed the patentee to control the patented property of the manufacturing license recipient
The selling price and conditions of the product, but not the price and conditions for re-sale after the first authorized sale. The court declared that
"The price limitation clause is within the scope of reasonable return from the patentee who has obtained the patent authorization." "Yes,
You can produce and sell products produced in accordance with my patent, but it does not harm me
The profit that can be obtained when producing and selling patented products. [201] Therefore, the court upheld the price restriction clause.
When discussing this case, Posner pointed out that the court’s logic is that if the licensee is
People’s price, and doing so may squeeze the patentee out of the industry, which would be a detriment to the effective interest of the patent.
It may be frustrated with use. [202] In the Columbia Pictures case, the resale price of copyrighted works was considered
Law. However, the cases in the same period of this case generally applied the principle that the price restriction itself was illegal.
The precedent role of the electrical appliance company case was greatly weakened, and the specific circumstances of the case also made it
The scope is too narrow ① , not enough to be summarized as general principles of intellectual property license price limits.
In 1979, Broadcast Music, Inc. v. Columbia Broadcasting System, Inc.
In the case [203] , the U.S. Supreme Court supported a performance rights organization’s price restriction on licensed works. Should
The organization authorizes licensees to obtain performance rights for any song in its catalog at a lower price. foreign
The authorized income is allocated to the author by the organization according to the frequency with which each member’s work is performed. By setting
With fixed prices, the organization eliminates price competition among members for licensing works. But Posner
In a paper discussing the licensing of intellectual property rights from the perspective of transaction, it was commented that this fixed price
The form of grid greatly reduces transaction costs, and the resulting efficiency is greater than that caused by fixed prices.
Estimates of all sunk costs and other social losses. [8]
With the increasing importance of the principle of reasonableness in U.S. antitrust law, judicial attitudes towards price restrictions have also been dev
There has been a slight change. The State Oil case in 1997 established the first
example. [204] However, the minimum price limit is still regarded as illegal in itself. In addition, the Colgate principle ② makes the recommended price
No longer considered itself illegal.
5.5.2.2 Relevant legislation and practice in the European Union
Article 81(1) of the Treaty of Rome stipulates: “Directly or indirectly limit the purchase or sale price,
Or any other terms of trade", which affect the trade between members and have obstacles, restrictions or distortions.
① The General Electric Company case only refers to the simplest form of licensing agreement: a single bilateral agreement between the patentee and the recipient of its manufacturing license.② The Colgate principle is derived from the case law formed in the Colgate case in 1919. Its basic content is: the manufacturer has the right to refuse and fail to comply with its recommendationsThe price of the seller's transaction does not constitute a price restriction behavior.
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The agreement on the purpose or effect of competition in the common market is prohibited unless it complies with Article 81 of the Treaty.
(3) Provisions can be exempted.
In the "Regulations 772/2004 on the Exemption Rules of Technology Transfer Agreements", "the parties are restricted from
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The pricing power when the three parties sell products” is an “absolute restriction” clause that cannot be exempted. Subsequently, the European Commissio
Will be explained in the "Guidelines on the Application of Article 81 of the Treaty on Technology Transfer Agreements" as:
It is an agreement between competitors for the purpose of fixing the price of a product sold to a third party. Fixed among competitors
The price agreement constitutes a restriction on competition. Fixed prices may take many forms, such as reaching an accurate price
Agreement, or reach an agreement on the price list and the maximum allowable discount. Does the agreement contain "fixed", "most
The words “low”, “maximum” or “recommended” prices are not important. Measures are taken to prevent prices from deviating from the agreed level,
Fixed prices can also be achieved indirectly, for example, if the price of a product falls below a certain level, it will increase
License rate. However, the licensee assumes the obligation to pay the minimum amount of royalties, not a fixed price line
for. In addition, the guidelines also point out cartel situations where prices are set through cross-licensing. On the basis of individual production
If the license fee is calculated based on the sales of the product, the amount of the license fee has a direct impact on the marginal cost of the product.
It will directly affect the price of the product. Therefore, competitors can collect license fees based on the output of each other.
License to coordinate prices in the downstream product market. Therefore, when this cross-licensing agreement has no other positive
When the sexual reason is not a true license agreement, it is considered a fixed price.
5.5.2.3 Relevant legislation in Japan
The price limit is the only one in Japan’s 1999 "Guide to the Anti-Monopoly Law in Patent and Know-how Licensing Agreements".
1. Provision of restrictive clauses within the scope of the blacklist. Clauses 5(2)(a) and (b) of Part 4 of the Guidelines respectively
The two acts of maintaining the resale price and fixing the price by agreement are themselves illegal. So, for price restrictions,
Japan basically does not consider the application of the principle of reasonableness. The basis is that in the patent license agreement, the licensor restricts
The resale price of the licensee in Japan will limit the price freedom of wholesalers and retailers, leading to
The price competition for patented products has been reduced or even disappeared, which has a negative impact on market competition. Agreement fixed p
Ge also violated the law based on the same analysis.
It’s worth noting that Japan considers price restrictions in intellectual property licensing as illegal, but the condition is
The region where the price is restricted is "Japan". In other words, this rule only applies to the Japanese domestic market, while exports
The market can have exceptions. According to the Japan Fair Trade Commission's "Regulation of Patent and Know-how License Agreement"
According to the “Guidelines on Unfair Trading Practices in China”, the licensor can control the
price. These markets include areas where the licensor has obtained patent protection for the disputed product, and continuous sales of products
Area. Therefore, the restrictions on export prices in Japan’s intellectual property licensing are not necessarily illegal.
Rules for identification. [188]
5.5.3 Anti-monopoly Law Analysis of Price Limits in Intellectual Property Licensing
Price is the basic tool of free competition. If the price competition between competitors is cancelled, it is equivalent to
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The competition among competitors is basically ruled out. Of course, competitors can also compete in service and quality.
However, in any case, price competition is one of the most important content of competition, this is undoubtedly.
Therefore, the anti-monopoly laws of various countries strictly regulate price restrictions. From the basic economic laws of market economy
From a point of view, price restrictions are not economically justified. Because the cost and demand are always in the market
Changes, not to mention the fundamental changes brought about by technology, an originally reasonable price is likely to be in a short time
The time is considered very unreasonable. Therefore, the anti-monopoly regulation of price restrictions is also a market economy
Intrinsic requirements.
However, price restrictions in the licensing of intellectual property rights may still be justified under the following circumstances:
First, the licensor is to ensure the commercial profits of himself and the licensee. From the perspective of the licensor,
For example, when the licensor charges a license fee based on the sales of a single product, the licensor
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Where the licensee sells at a low price or even at a loss for other commercial purposes, a minimum selling price may be set
grid. Some scholars argue that if the intellectual property owner cannot maintain the price level, he cannot ensure that he
Recover due remuneration; if the law prohibits it from imposing price restrictions in the license agreement, the intellectual property owner can
Can be reluctant to permit others at all. [205] From the perspective of the licensee, setting a minimum selling price can avoid
Entering into vicious price competition with other licensees, so that their initial investment is guaranteed to return. Second, protect
Protect the licensor and the public from improper use of the exclusive domain by the licensee. [12] Especially in exclusive licenses
In, setting the maximum price can promote the licensor’s enthusiasm for external exclusive licensing. Because if not
The guarantee of the highest price, the licensor may be worried that the licensee will overly
Predatory development of the technique. Therefore, the maximum price can protect the interests of consumers from the erosion of high prices, and at the sa
It enables the licensor to license the technology to the most efficient licensee, and promotes the use value and development prospects of the technology.
Third, price restrictions in the collective management mechanism of intellectual property rights have a certain positive significance. In the aforementioned
In the case of Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., edition
The practice of the right management organization to limit the price is a great saving in social transaction costs. In the field of patents and know-how
In order to solve this dilemma, the phenomenon of patent thorns has been formed due to the increasing number of granted patents.
Often similar or related patents or proprietary technologies are combined into a patent platform for joint external licensing.
With the fixed user fee model, as long as the amount of the user fee is reasonable, it will also produce a certain economic efficiency for the society.
5.5.4 Suggestions for anti-monopoly legislation on price restrictions in intellectual property licensing in my country
Article 13 of my country’s Anti-Monopoly Law stipulates: “It is forbidden for business operators with a competitive relationship to reach the followin
Agreement: (1) Fix or change commodity prices;..." Article 14 stipulates: "It is forbidden for operators to interact with the transaction
The following monopoly agreements are reached with each other: (1) Fixing the price of goods for resale to a third party; (2) Limiting the price to a third p
The lowest price of goods sold by people;..." It can be seen from these laws that, with regard to price restrictions, my country’s
Many other countries adopt their own illegal principles, but the types of price restrictions only stipulate horizontal fixation.
Price and vertical fixed resale price or minimum price. Regarding the price restriction clauses in the intellectual property license, I
There seems to be no more typical case in China. Due to the strict price restrictions imposed by developed countries
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Attitudes and the general public’s general aversion to price restrictions have led to multinational companies’
It is rare that price restriction clauses can be used in contracts.
In view of the fact that my country’s Anti-Monopoly Law’s regulation of vertical prices is limited to resale prices, the licensor has
The licensee’s use of patented or proprietary technology to produce products or services to limit the first sale price shall be carried out
Rationality analysis. Based on the stimulus to the licensor’s technological innovation, the price limit, production cost, and marketing scale
This restriction can be tolerated under conditions such as basic symmetry. Regarding the maintenance of resale prices, of course, in accordance with the "A
According to the provisions of "Ruling Law", it is found that it is illegal. For collectives such as copyright management organizations, patents and proprieta
The fixed price behavior of the management organization, even if it constitutes a certain degree of price restriction between competitors, it can still be
Apply the principle of reason for analysis.
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Chapter 6 Anti-monopoly against licensing activities in technology pooling and technology standaLegislation
6.1 Anti-monopoly legislation on licensing activities in technology pooling
6.1.1 Technology pooling and its license
6.1.1.1 Cross-licensing and technology joint ventures and the reasons for their formation
In the context of the new economy driven by high and new technology, an intellectual property in the traditional economy covers a certain industry
The phenomenon of core technologies in the industry is not common anymore, but is manifested as a collection of several intellectual properties on a produ
Therefore, American scholar Bronwyn pointed out: Today’s patent world is undergoing important changes.
Transformation, that is, tactical competition characterized by individual patent competitions is turning to strategic competition characterized by patent portf
On this basis, Wagner further systematically proposed the patent portfolio theory. He believes that a single patent dominates
The times have passed, and the value of the overall (patent portfolio) in the new patent world will be far greater than the partial (single patent).
The sum of value, and the ever-expanding patent application activities are the inevitable result of the widespread implementation of patent portfolio strateg
fruit. [206] intellectual property cross-licensing and technology joint venture ① It is in this context that the current intellectual property licensing field
Really reflect.
Intellectual property cross-licensing and joint operation are two related and different concepts. Intellectual Property Cross License
However, it means that intellectual property owners have mutually passed a licensing agreement to license their intellectual property rights to each other un
use. Technology pooling refers to multiple intellectual property owners, in order to be able to share proprietary technology or
A formal or informal joint organization formed by unified external licensing. [207] The connection between the two lies in
Cross-licensing is the only way for intellectual property pooling, but there are also differences between the two: First, intellectual property pooling is often
Have an independent and unified management organization entity. This management organization entity can be a partnership enterprise or
It can be a limited liability company; cross-licensing of intellectual property rights only requires two or more intellectual property owners
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To reach a right cross-licensing agreement, there is no separate organizational entity. Second, the intellectual property pool is
It is composed of more than two enterprises, and the cross-licensing of intellectual property rights only refers to the two rights of each other's technology li
Liren.
In intellectual property pooling, if the parties to the pool have mastered the core technology of the industry, the pooling will often become a
Technical standards associates ② , produce or develop a de facto industry standard technology, which is the new economy
① Technology alliances are also called technology alliances, intellectual property pools, patent pools, patent pools, patent alliances, etc. in relevant domestic and foreign literature.Some of these formulations are only differences in titles, such as joint ventures and alliances; some reflect the different research perspectives of researchers, such as the description of intellectual property poolingNot only includes patents and copyrights, but also includes joint licensing of trademarks; patent pools, patent pools, or alliances reflect the prominence of patents in technologystatus. This article believes that joint licensing of trademarks is rare in practice, and is not limited to patents. Software copyright is also a high-tech industry.Common license subject, therefore, this article adopts the term technology joint venture.②Technical standard pooling appears in different domestic documents as standard pooling, technology pooling, technology standardization pooling, and enterprise pooling.There are similar references to the literature on this type of joint venture. From these formulations, we can see the different focus of the researchers' understanding of it.Standard consortium points out that it is a strategic consortium established around standards; technology consortium emphasizes the role of consortium in innovative behavior; technology
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An important manifestation of corporate intellectual property strategy. In the contemporary high-tech industry, technical standard joint ventures have becom
It is a relatively common phenomenon. Because the combination of technical standards and intellectual property rights is mainly reflected in the field of pa
Therefore, the main role in the formulation and promotion of technical standards is patent pooling, or patent pooling. exist
In the current new economic field, the communications industry includes GSM joint operation, CDMA joint operation, WCDMA joint operation, and CDM
In the computer and multimedia industries, there are DVD joint operation and "Bluetooth" joint operation. But the majority of Chinese companies
The situation is only the users of the joint operation standard, and there is no right to say in the standard setting. This has led to the
Many industries, such as mobile phones, need to pay high patent royalties to foreign patent owners. In view of the technical standard
Quasi-joint operation plays a huge role in the establishment and diffusion of technical standards. Chinese enterprises have also begun to actively establish t
Joint operation, such as "IGRS" technical standard joint operation, TC-DVD standard joint operation, Changfeng open platform software standard joint ope
Etc., in order to reverse the passive position in the technology standard competition.
From cross-licensing, technology pooling and even developing into technology standard pooling, the technology portfolio has gradually become an e
The main reasons for the consensus of the industry are as follows:
First, avoid the need to "anti-public goods tragedies". Take the patent phenomenon as an example: since the 1980s
Began, some foreign scholars began to propose "patent paradox" ① phenomenon and have launched research, resulting general structure
The argument is: the essential characteristics of patents lead to the existence of complementary patents and constraining patents, making many patents use
There are often mutual restraints. A certain company wants to make a new product or launch a new technology. If there is no
The law obtains most of the relevant patents, the commercialization of its products or the hope of manufacturing new products will be difficult to realize. to
It is necessary to obtain licenses to use patents from many other manufacturers with restrictive and complementary patents (the price is generally
Is to pay a license fee), otherwise it will inevitably infringe the relevant patents and face the dilemma of infringement litigation.
It is the so-called "patent thicket" phenomenon. The jungle phenomenon makes companies want to make new products
It is very likely to infringe most patents and bring about "tragedy of anticommons" (tragedy of anticommons) ② .
When multiple companies have complementary patents and containment patents, the "tragedy of anti-public goods" makes the original patentThe legislative purpose of the system to encourage invention and reward innovation has failed, and it inhibits innovation. For containment patents, complem
The “tragedy of anti-public goods” and the “problem of complementarity” caused by sexual patents and patent bushes are effectively resolved by relative
Standardization joint venture points out that technical standards are a dynamic diffusion process. The purpose of joint ventures is technical standardization, because only technical standards continue to be obtained.Accept, the joint operation based on this standard can be finally recognized by the market; and the argument of enterprise joint operation sees that this kind of joint operation has enterprises as members.This is different from other strategic joint ventures that include non-enterprise members. For example, technology joint ventures based on R&D and innovation will include some research institutions. Although someNon-enterprise organizations and the government will be involved in the formulation and review of standards, but the technical standard joint venture referred to in this article only includes enterprises.① The patent paradox is a generalization put forward by American scholars after empirical analysis of the patent research and development and application status since the 1980s.It is used to summarize the sharp increase in the number of patent applications filed by American companies each year since the 1980s.Funds have not increased along with it (not meeting policy expectations), and the expected value of a single patent is also declining. Questioning the constant devaluation of patentsAt the same time, why are people so keen to obtain patents? Early explanations of this paradox include the improvement of R&D efficiency, as a credit signal and internalMinistry’s evaluation standards are value-added, and patents are compared to lottery tickets, etc., but they are not satisfactory. Source: Liu Linqing. Research on "Patent Paradox" Abroad
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Summary—From patent competition to patent portfolio competition[J]. Foreign Economics and Management, 2005, 27(4): 10-14.②Tragedy of commons means that if resources are not protected by propertySources will be overused. Water resources and forests are typical examples. However, after granting invention patent protection, because of the large number of patents,Before using each patent, it is necessary to obtain the permission of the patentee, but the resources cannot be fully used, which becomes an obstacle to subsequent invention and innovation.The situation is exactly the opposite of the traditional "tragedy of public goods", which is called the "tragedy of anti-public goods" (Michelman, 1982). Quoted from: Liu LinQing, Liwen Tan, Haoxing Zhao. Patent jungle, patent portfolio and patent pooling-from patent strategy to patent cluster strategy. Research and development management, 2008No. 4, 85 pages.
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Different companies related to patents form patent pools through patent cross-licensing and patent centralized licenses. [31] Second,
Avoid R&D risks. In the 1990s, especially in the information industry, investment in the development of some new technologies was huge.
In order to avoid the huge sunk costs caused by direct standard competition, some of them are in a leading position in the industry.
Of giant enterprises often form joint ventures on some core technologies and thus establish common technical standards. By joint
R&D and joint investment have effectively reduced the huge risks of enterprises in standard development. At the same time, technology joint ventures
The density and speed of information transmission in technology development is faster, and all parties to the cooperation can jointly formulate technical sta
The compatibility of technology avoids the huge resource loss caused by repeated development and blind development, and effectively guarantees
Successful market conversion of scientific and technological achievements. Third, the existence of network effects. With the development of information te
It plays an increasingly important role in human production, exchange and distribution activities, and network effects intensify corporate capital
The finiteness and imbalance of the source stock are the main motivations for the existence of technical standard joint ventures in the network economy.
Cooperating parties share information resources, realize complementary technological advantages, and continuously improve their respective technological
And to maximize the external value of the network used in common, so as to achieve a "win-win" synergy effect. [208] Comprehensive
As mentioned above, technology pooling has become an inevitable requirement for the development of science and technology to serve the society, and it i
Competitive strategic choice.
6.1.1.2 Licensing in technology pooling
The members of the technology pool generally obtain the use of each other's intellectual property through cross-licensing.
There are generally two modes for technology pooling to license externally:
First, the joint management agency is responsible for unifying the external licensing model. This model is generally proposed by the management age
Provide relevant format contracts, negotiate with licensees, charge and other matters, such as DVB (European Digital Television
Broadcasting joint venture) provides DVB CDSL rules (Common Descrambling System Licence and
Non-Disclosure agreement) and DVB STL rules (Scrambling Technology
(private)Licence and Non-Disclosureagreement), which stipulate the scope of the license,
Confidentiality clause and liability for breach of contract. Second, while the joint management agency has unified external licenses, it can also allow specia
Interest holders independently carry out the bilateral licensing of their own related patents. For example, in June 1997, the U.S. Department of Justice
The MPEG LA patent pool① issued a commercial review letter, declaring that the MPEG-2 patent pool has a pro-competitive nature.Therefore, the approval was given in the commercial review letter, and one of the most important reasons is that the patent license is
Occupying. Since a certain patent participating in the patent pool can still be obtained from a single patentee,
Therefore, the patent pool does not require the licensee to accept multiple licenses that it does not want, so this model is considered to be
A better choice to curb the anti-competitive nature of patent pooling.
① MPEGLA involves audio and video compression technology. Nine companies have the necessary patents for MPEG-2 technology. These nine companies form MPEG LA.
License necessary patents for MPEG-2 technology in a package abroad. source:http://www.usdoj.gov/atr/public/busreview/1170.htm
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6.1.2 Analysis of Anti-Monopoly Law of Technology Consortium
Summarizing the research on technology pool in theory and practice in various countries, it is generally believed that it has the following advantages:
Obstructive intellectual property rights, especially patents and the integration of complementary patents; reduce intellectual property transaction costs; redu
Low and high litigation costs, etc. [209] On the other hand, due to the combination of the exclusivity of intellectual property
It will produce unprecedented monopoly and endanger the fair market competition environment.
First, technology pooling may limit competition among alliance members. Technology pooling is a typical horizontal
Restriction of competition agreement, when the joint venture contains competitive patents, or the joint venture uses the joint venture agreement to fix price
It greatly reduces the degree of competition among the right holders in the technology market or product market when the market is divided. in addition,
From the perspective of standard setting, due to the obvious competitive relationship between enterprises in the same industry, this
The coordination and joint actions carried out by these companies to set a unified standard actually already existed for the purpose of formation.
The possibility of cartels for the purpose of restricting competition. This point is in line with the “factual standard” produced through market competition
Different, because in this situation, the outside world has no way of knowing whether standards are actually required in the industry.
For the benefit of the enterprise, it is possible to reach an agreement to manipulate the standard design through unfair procedures.
Certainly. Therefore, this kind of standard-setting coordination activity is very likely to evolve into exclusion of “de facto standards”.
Cartel of unfolding competition. [210]
Second, it may cause the technology pool as a whole to abuse its dominant market position. When intellectual property rights are combined
Among the standards, the exclusivity of intellectual property rights and the external effects caused by the standards enable the holders of the standards to ob
The dominance of the industry, especially in the new economy industry, network effects and consumer lock-in effects make standards more
With the supremacy of "one husband is the gate, the one who won't be the best", the so-called "the one who gets the standard wins the world" is a response
The image description. In the joint licensing of intellectual property rights in the standard, the joint venture may use its advantageous position to formulate
Restrictive clauses improperly affect the market competitiveness of downstream enterprises. These restrictive clauses mainly include: price
Restrictions, exclusive grants, prohibition of validity challenge, determination of inappropriate patent licensing rates, price discrimination,
Tying and so on. ①
Third, it may affect technological innovation. When the joint venture agreement stipulates that
Mutual permission may reduce the motivation of alliance members to innovate due to the psychological trend of "free-riding". Other
On the one hand, when signing a licensing contract, just like ordinary intellectual property licensing contracts, there are often provisions for granting back
Terms, and because the technology pool has a stronger exclusivity and dominance than ordinary intellectual property owners, the contract
The grant-back clauses in s
For the licensee, it undoubtedly reduces the incentive and motivation for technological innovation.
①The DVD patent fee dispute that occurred in China is a typical case that we are familiar with: In 1999, 6 companies with core DVD production technology
There was a dispute between the 6C alliance formed by the industry and the Chinese DVD manufacturers over the royalty for DVD patents. 6C Alliance as a DVD core studentThe patentees of the production technology, their technology actually covers almost all the technology of DVD production, and has become a global DVD production"The de facto standard." In view of the fact that the products produced by my country's DVD manufacturers are of high quality and low price, they have gradually occupied overseas markets and have further expandedTherefore, in order to drive my country’s DVD products out of the international market, they have imposed high licensing fees on my country’s DVD manufacturers. This kind ofThe use of intellectual property rights related to technical standards to exclude competitors has actually constituted an anti-monopoly law.elephant.
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6.1.3 The United States and the European Union have anti-monopoly regulations on licensing activities in technology pools
6.1.3.1 Relevant legislation and judicial practice in the United States
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In March 2007, the U.S. Federal Trade Commission and the Department of Justice jointly issued a
Law and Intellectual Property: Promoting Innovation and Competition" work report, which summarized in detail the
Balance the practice and theory of anti-monopoly law and intellectual property protection, especially the 1995 "Intellectual Property Licensing"
Implementation of the Antitrust Guidelines. The third chapter is: "Cross-licensing and patent pool anti-monopoly
Law analysis”, and put forward a series of issues that may arouse the attention of anti-monopoly law in the field of cross-licensing and patent pool licensin
The problem should be regarded as a relatively comprehensive and novel monopoly law information on the technical standard joint operation. The followin
Take this as a blueprint.
First, it distinguishes two different types of licenses, cross-licensing and patent pools.
Many aspects have the same competitive issues. Under normal circumstances, patent pools are more likely to cause anti-monopoly law
focus on.
Second, conducted an antitrust analysis of cross-licensing. Cross-licensing can overcome patent bushes and reduce licenses.
The side that promotes efficiency, such as cost, may also bring about barriers to market entry, fixed prices,
Anti-competitiveness such as the domain market. The analysis believes that: First of all, non-exclusive cross-licensing generally does not cause competition
Secondly, it examines the restrictive competitiveness of a cross agreement on the product market, based on the 1995 "Intellectual Property
The "Antitrust Guidelines for Rights Licensing" stipulates that the total market value of both parties does not exceed 20% as a safe harbor. Again, test
To observe the restrictive competitiveness of a cross agreement on the technology market, whether there are still four or more
Alternative technologies are the standard. Finally, summarize the analysis of the anti-monopoly law of cross-licensing, all should be based on the principle
In order to measure which factors restrict competition and promote efficiency, which is more important.
Third, the analysis of the anti-monopoly law of the patent pool. The patent pool is generally applicable to patent licenses for standardized products
Yes, it has the advantages of overcoming patent bushes, reducing license fees, reducing transaction costs, and promoting technology diffusion, etc. to prom
At the same time, it may also bring about anti-competitiveness such as market entry barriers, fixed prices, and division of geographic markets.
sex. The report introduced the Ministry of Justice's licensing plan for MPEG-2 patent pool① , DVD patent pool and 3G patent platform
① Only the commercial review letter of MPEG LA will be introduced here. The content of the examination letter of the DVD patent pool is also roughly similar and will not be repeated. In June 1997,The U.S. Department of Justice issued a commercial review letter to the MPEG LA patent pool. MPEGLA involves audio and video compression technology, nine companies have MPEG-2Necessary patents for technology. The nine companies formed MPEG LA to license the necessary patents for MPEG-2 technology in a package. U.S. Department of JusticeThe business review letter believes that the MPEG-2 patent pool has a pro-competitive nature, so it is recognized in the business review letter. For MPEG-2 technologyThe main content of the commercial examination letter of the technical pool is: (1) The MPEG-2 patent pool only includes complementary rather than competitive patents.It is necessary to comply with the MPEG-2 standard, and the patent pool has a clear definition of “necessary” because it has two requirements: one is to be included in the joint ventureEach of the patents in has no technical substitutes; the second is that the patents are only useful for MPEG products when they are combined with each other. (2) The patent licenseBut it is not exclusive. Since the first patent participating in the patent pool can still be obtained from a single patentee, the patent pool has notThe licensee is required to accept multiple licenses that it does not want. (3) The patent pool uses independent experts to select which patents are necessary, so avoidInappropriate inclusion of competitive and alternative patents. In addition, since each member’s license fee isBased on the number of patents required, this structure of royalties will prompt members to reject non-essential patents of other companies. (4) The standard systemThe patent pool promises equal access. This model will be provided to all licensees under the same conditions. This requirement for equal access will excludeAny possibility of using the patent pool to harm other competitors. (5) The patent pool of the standard system allows unilateral competition with the standard.It means that it has no content that restricts the licensee from developing alternative technologies, so the patent pooling behavior will not restrict innovation. (6) The patent pool beltHere comes the obvious efficiency. The patent pool reduces the time and cost of various licenses required to manufacture MPEG-2 products.The technical standard may be conducive to competition. Source: Antitrust enforcement and intellectual property
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Business review letter, and in 1998 the Federal Trade Commission revoked the patent pool Summit-VISX case ① base
In this case, it is concluded that for the patent pool in the standard, the anti-monopoly law focuses on the following aspects:
(1) Necessity of patents and technology complementarity issues. In order to make the best use of the patent pool to promote efficiency
At the same time, to reduce restrictions on competition, it is necessary to ensure that the patented technologies in the patent pool are mutually compatible w
Complementary rather than alternative. In order to achieve this goal, the necessary selection of patented technology is very important.
Necessary, that is, to ensure that all patents entering the patent pool are essential patents. report
A variety of retort methods are discussed. There is a view that the “economic test (economic test) used in the DVD patent pool
test)” method is better than the “technically essential test” adopted in the MPEG-2 patent pool.
test)" is better, it is easier to get the approval of the anti-monopoly law enforcement agency. On the contrary, there are opinions that,
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It is not so easy to distinguish between essential patents and the complementarity or substitution between patents.The existence of many alternative patents can also have a positive effect under certain circumstances. ②In general, according to 1995
According to the Antitrust Guidelines for Intellectual Property Licensing in 2004, the construction of patent pools by complementary patents generally doe
problem. Even if the patent pool contains alternative patents, it does not mean that it violates the anti-monopoly law.
Carry out case analysis on the basis of the principle of reasonableness.
(2) The issue of exclusive permission and non-exclusive permission. There is a view that exclusive licensing harms innovation, while
Non-exclusive licenses may create competition with existing patent pools that have become part of a standard or standard.
Competing technical standards and even competitive products. As a member of the patent pool, when considering whether to conduct an independent licen
It will be mainly based on its estimate of the value of alternative standard innovations that may be produced. The report pointed out that in 1998 the federal
One of the main reasons for the Trade Commission’s withdrawal of the Summit-VISX patent pool is that the two parties stipulated exclusivity.
license. However, at the end of the report, it was concluded that exclusive licensing does not necessarily cause anti-competitive effects.
In the case of other licenses as an incentive for all parties to invest in complementary equipment, the lack of exclusive licenses will lead to
The phenomenon of free-riding. Therefore, for non-exclusive licenses, it generally does not cause competition law issues.
Permit, you need to conduct case analysis under the principle of reasonableness.
rights:promoting innovation and competition. Issued by the US Department of Justice and theFederal Trade Commission. April 2007① Brief introduction of the case: In 1999, the US Federal Trade Commission handled a case involving a patent pool. Summit Technology Corporation and VISX Corporation,It is the only two production "Photorefractive keratectomy" (Photorefractive keratectomy) approved by the US Food and Drug Administration.A company called PKR facility. In 1992, the two parties reached a series of agreements (PPP agreement), stipulating that both parties willLee authorizes the PPP of the partnership of both parties. There are at least 25 patents in this patent pool. PPP has the right to license patents, and Summit andVISX does not have the right to license unilaterally, but both parties have the right to prevent PPP from licensing the patent to any other person engaged in PKR business. In agreementIn China, PPP licenses the patent to Summit and VISX, and the latter pays royalties to PPP. Due to the payment of user fees, Summit and VISXThe price to consumers is higher than when there is no patent pool. In 1998, the US Federal Trade Commission began an investigation into Summit and VISX. UnitedThe State Trade Commission believes that the patent pooling behavior of Summit and VISX is actually a fixed price behavior. If there is no patent pool,They will be competitors in the PKR equipment sales and leasing market and the technology licensing market. Finally, Summit and VISX agreed to the federationThe Trade Commission reached an agreement with the Federal Trade Commission on the basis of allegations that its patent pool violated antitrust laws. Antitrustenforcement and intellectual property rights:promoting innovation and competition. Issued by theUS Department of Justice and the Federal Trade Commission. April 2007② If the licensee is allowed to choose which patents to purchase, it will not only share the total advantages brought by the patent pool, but also avoid excluding the substitute patent from the patent
High transaction fees brought by the pool.
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(3) The issue of grant-back clauses. Some people think that in the patent pool license agreement, the scope of the grant-back clause
It is often larger than the definition of grant back in the Antitrust Guidelines for Intellectual Property Licensing in 1995, ① and even covers
Inventions that are not relevant to the licensed technology, and this will reduce the licensee’s creation of subordinate patents
Enthusiasm and motivation. Based on the analysis of the above cases, the report pointed out that among the three patent pool schemes passed,
The provisions on grant-back clauses are relatively narrow, and are limited to the technical transformation and modification of existing patents or even esse
Improve, and this kind of feedback is non-exclusive.
(4) Information acquisition problem. The report pointed out that the members of the patent pool are often competitors in the market.
The DVD patent pool includes not only disc manufacturers, player manufacturers, but also movies, music, and entertainment
Le software manufacturers have both horizontal competition and vertical collaboration with each other. Therefore, in the patent
In the pool, special attention should be paid to members’ access to each other’s private business information (such as raw material purchase quantity, cost
Data, proposed price, production volume, etc.) in order to prevent the exchange of information such as fixed price
Restrictions on competition, such as rules, market divisions, etc. The above-mentioned MPEG-2 patent pool, DVD patent pool and 3G patent platform
Licensing programs all provide for specific mechanisms to prevent the exchange of information between members.
(5) The issue of patent license fees. There is a view that the patent pool should be adjusted regularly for licensing fees.
In order to keep it within a reasonable range; there are also views that the patent pool’s licensing fees for member authorization are generally low
Whether the licensing fees for non-members’ authorization will have anti-competitive effects. But the report concludes: For Xu
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Whether the fees are reasonable or not, the anti-monopoly law agency is notDifferent license fees authorized by members will inevitably lead to anti-competitive effects. This requires individual review.
Whether there is a price alliance is a reference factor.
(6) Some patent pool licensing issues. There is a view that it should be ensured that the licensee licenses some patents
Requirements to prevent tying or paying for unnecessary patents. But the opposite view is that if you support this
Types of behavior, the patent pool must formulate multiple patent licensing methods and different licensing rates, which will greatly offset
The advantage of eliminating patent pools to promote efficiency and save transaction costs. The report concluded that as long as the patentee can
If the license is independent, there is no need to license part of the patent pool. There should be a better way to limit the patent pool
Non-essential patent issues.
Fourth, cross-licensing and patent pools are both efficient and anti-competitive. In this regard, anti-monopoly
Law should be analyzed based on the principle of reason. The existing 1995 "Guide" has provided sufficient methods and
Principles to deal with the cross-licensing and pooling of intellectual property rights in the new economy. [211]
6.1.3.2 Relevant legislation and judicial practice in the European Union
In the European Union, the analysis of the anti-monopoly law regarding technical standards pooling, in addition to the application of Articles 81 and
In addition to the general provisions of restrictive competition agreements and abuse of dominant positions, the main part of technology transfer (licensing)
According to EU 772/2004 regulations and 2004/C101/02 guidelines.
① This definition is: the licensor's right to use the results of the licensee's transformation and improvement of the licensed technology.
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First, regarding the application of 772/2004 regulations to technology pools. Commission of the European Communities 2004/C101/02
The guidelines stipulate that the agreement for the establishment of the technology pool and the agreement stipulating the terms and conditions for the oper
There are several parties, and they do not enjoy the application of Article 81 of the Rome Treaty on certain types of technology transfer agreements.
Exemptions provided by Regulation No. 772/2004 in Article (3). Because the pooling agreement involves other licenses that are not
Problems that will arise, such as the choice of technology, the operation of the technology pool, etc. However, license the pooling technology to
A single license agreement of a third party is treated the same as any other agreement, if it complies with Regulation No. 772/2004
The exemption conditions stipulated in the chapter will be exempted.
Second, the competitiveness of technology pools. The guidelines point out that technology pools may be anti-competitive in nature. Founded
Technology pool means co-selling the pooled technology. If the technology in it is entirely or mainly alternative technology,
The technology pool is a fixed price cartel. In addition, in addition to reducing competition among the pooling parties, if the technology
The pool supports industry standards or establishes de facto standards. By excluding alternative technologies, it may also lead to
Innovation weakened. The existence of standards and related technology pools makes it more difficult for new or improved technologies to enter the marke
On the other hand, the guidelines point out that by reducing transaction costs, setting limited or progressive user fee standards, avoid
Avoid double marginalization. The establishment of the technology pool allows one-stop licensing of the technology in the pool. In intellectual property
Industries occupying an important position and sectors that must obtain a large number of intellectual property licenses in order to enter the market, this
Has a particularly important meaning. When the licensee needs continuous service on the licensed technology,
Common licensing and services can further reduce costs.
Third, the nature of technology pooling. The guide points out that the harm of technology pooling to competition and its promotion of competition
The extent of the dispute depends to a large extent on the relationship between the various technologies of the joint venture, and the joint venture technolog
The relationship between technology and technology outside the scope of the joint venture. Two basic distinctions must be made, namely complementary te
(Technological complements) and alternative technology (technological substitutes)
Distinguish, essential (essential) technology and non-essential (non-essential) technology distinction. Generally speaking,
Technology pools that are complementary to each other will not cause competition law issues, while the pooling of alternative technologies
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Camps are likely to limit competition between technologies, as opposed to collective bundling. If the joint venture only consists of necessary technology (b
It must also be a supplementary technology), regardless of the market position of the parties, the formation of this joint venture
It does not normally violate Article 81(1), but the conditions for granting permission may be adjusted by Article 82(1).
That is to measure whether the dominant position is abused. In order to ensure that joint ventures do not have a negative effect on technological competitio
Out, the joint venture’s review of alternative technologies must be a continuous process to ensure that it will no longer be necessary.
The technology can be excluded from the joint venture. The licensee should have the opportunity to obtain a certain item in the joint
License(s) of technology.
Fourth, the evaluation of individual restrictive practices of joint ventures. The guide points out that for the production of technology pools and techno
The specific licensing issues in the joint venture license are guided by the following three principles: First, the market location of the joint venture
The stronger the position, the higher the risk of producing anti-competitive effects; secondly, the joint venture with a strong position in the market should
It is open and non-discriminatory, with special emphasis on the treatment of licensees in the product market, and cannot
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It is different because it is not an associate member. Therefore, the committee will consider whether the licensor also has the permission to pay
The obligation to pay. Finally, joint ventures should not improperly exclude third-party technology or restrict the generation of alternative joint ventures.
Fifth, the institutional arrangements for joint ventures. The guide also points out how to
Avoid anti-competitive effects, such as the wide range of participants in the establishment of joint ventures, the generation of independent experts, and the
Mechanisms for exchanging sensitive information and independent dispute resolution mechanisms, etc.
6.1.4 Suggestions on anti-monopoly legislation for technology pooling and licensing in my country
my country’s current special anti-monopoly legislation on technology pools has not yet come into being. This article proposes to learn from others
National theory and practice, mainly from the perspective of restrictive competition agreements, and conduct anti-monopoly law analysis on technology po
And regulation. ①
First, whether the technologies in the joint venture are complementary and necessary. As mentioned earlier, Gaoxin
In the technology industry, the development of science and technology is comprehensive. Taking patents as an example, a product or technology often cove
Hundreds of patents are the phenomenon of patent thicket, so technology pooling is the optimal choice to overcome this phenomenon.
For a technology joint venture, the consensus among scholars is to divide the relationship between obstacles and complementary relationships.
There are three types of relationships with competition: [212]
Obstacle to sexual relations. The patented technology obtained by the secondary development is called the subservient patent (Subservient
Patent), the original patented technology is called a basic patent (Dominant Patent). Subordinate patents and basic
The relationship between patents is a relationship of mutual restriction and mutual obstacles: if the basic patent is not licensed, fromThe subordinate patent does not have the right to conduct commercial development and operation; similarly, if the subordinate patent is not licensed, the ba
This patent cannot commercialize patented technologies developed on the basis of subordinate patents. But only
As far as the commercial operation of the basic patent itself is concerned, it is not necessary to obtain the license of the subordinate patent. So, you learn
The author also referred to this situation as a unilateral obstructive relationship, and believed that a blanket license of this type of relationship might
There is an anti-competitive effect. [213]
Complementary relationship. Generally speaking, an invention is a combination of several different patented technologies, and different patents
The technology separately covers an aspect or a function of the invention. These patented technologies are mutually exclusive
Instead, there is a patent complementary relationship between them. There is a kind of “all-win” among patents with this kind of patent relationship.
"Prosperity, damages at all costs" relationship, that is, the improvement of one patented technology requires the corresponding improvement of another pat
Then, if there is no improved patented technology, it will become an obstacle to improving the patented technology.
Competitive relationship. Patent competition means that patented technologies can be substituted for each other in the market. When one
A new patented technology becomes a market substitute technology for the original patented technology, or the new patented technology is in the original p
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① The anti-competitiveness of technology pools is examined from the perspective of abuse of market dominance, which mainly refers to when technology pools have a strong market position (such as major costThe market share of employees occupies most of the product or technology market), and the technology established by the technology pool has become the de facto standard in the market.shape. In this case, the technology pool itself has become a technology standard pool. Based on the importance of standards in the context of the new economy, the technology poolIt can be said that the camp has achieved market dominance. Regulating the abuse of this position by the joint venture is the object of attention of the anti-monopoly law. In the second section of this chapter about technologyThis point will be discussed in the study of technical standards. Omit here.
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When the technology is developed around the technology and does not harm the interests of the original patent, the new patent and the original
Become the relationship of patent competition.
If the technologies in a technology pool are complementary, then it is also necessary to examine whether these technologies are all complementary.
It is an essential patent. ① Generally speaking, technology pools that are mutually complementary and are all essential patents are fully developed
The advantages of joint ventures in reducing transaction costs, promoting the development of new technologies, and overcoming patent barriers, have been
It also does not have anti-competitive issues such as tying caused by a blanket license of competitive patents, so it is considered that there is no
Actions with obvious anti-competitive effects will not receive the attention of the anti-monopoly law.
Second, the method of external licensing of technology joint ventures. In practice, there may be as many as thousands of technologies in the joint ven
On the one hand, the above classification of patented technologies in joint ventures may not be easy in practice, as in the European Community
As pointed out in the 2004/C101/02 guidelines, some patented technologies may be partly complementary and partly competitive.Competitiveness; on the other hand, there may be situations where some technologies are unnecessary but complementary. If the technologies
Only one-stop licenses can be adopted for external licenses of joint ventures, which may result in anti-competitiveness in the relevant technology market.
Effect. Therefore, if a technology joint venture adopts a packaged license (one-stop license), it can also accommodate
When the license is granted alone or in part, it will not have a significant anti-competitive effect on the technology market. ②
Third, the exclusivity of technology pooling. Patent pools can be divided into two types: "open" and "closed" pools.
The so-called "open" patent pool refers to the patent pool that “packages” the patents of the companies in the pool and licenses them outside the pool.
Other companies; the so-called “closed” means that the patented technology of the joint venture is only for use by the joint venture company, not external
Patent license. Generally speaking, open technology pools will not produce obvious anti-competitive effects. Of course, one
The use of a closed technology alliance does not mean that it must violate the anti-monopoly law, only when this technology alliance
The anti-competitive nature of closed joint ventures can be determined when the de facto technical standards have been formed. In other
Under circumstances, whether the use of closed joint ventures is anti-competitive should be analyzed on a case-by-case basis on the basis of the principle o
Analysis.
Fourth, in terms of the organizational structure of technology joint ventures, we should examine whether it can be guaranteed that joint ventures will
The technology market has a clear effect of eliminating competition. For example, when judging the necessity and complementarity of patented technology
How independent experts have the ability to make independent judgments and the extent to which they have the ability to make independent judgments;
The operation has become a de-competition agreement in which all parties actually fix prices and divide the market. Is there a reasonable mechanism and o
The organization prohibits the communication of confidential business information among members.
In general, my country’s technology pool’s anti-monopoly laws and regulations should focus on the impact on competition and the impact on innovat
Start with the new impact in two ways. First, determine whether the licensing arrangement of a certain technology pool has substantial impact on competiti
① Generally speaking, essential patents will show complementarity, but in practice it is not simple. First of all, mutually complementary patents are complementary to each other.
It is a comprehensive complementarity. Assume that there are 123456 patented technologies in a joint venture, of which 12, 34, and 56 technologies are complementary to each other, but 246 are three patented technologies.Advantages and technologies are not complementary to each other. Therefore, necessity and complementarity are two aspects of technology pooling, which have their commonalities, but they still need to beConsider alone.② However, there are also views that allow multiple licensing methods to offset the patent pool’s advantages in reducing transaction costs and saving licensing fees.Advantages (see the latest report on the United States). This article believes that, in any case, allowing a separate license does not mean that it can only be licensed separately.In most cases, one-stop licensing can still be used, and the right to choose lies with the licensee. As the joint venture and the licensee are often in an unequal state,Giving licensees more options should be a manifestation of substantial fairness and is also the main thrust of the anti-monopoly law.
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Obstacles, such as joint ventures of complementary technologies, generally do not hinder competition, but increase the efficiency of licensing; if a certain
Licensing arrangements such as blanket licensing, closed licensing, grant-back clauses, etc. may have an obstructive effect on competition.
Then analyze whether this arrangement is necessary to encourage technological innovation, and whether the efficiency brought about is sufficiently greater
Elimination of competition; if an arrangement is purely to eliminate competition, it can be regarded as anti-competitive behavior.
6.2 Anti-monopoly legislation for technical standardization and licensing
6.2.1 Technical standardization and intellectual property licensing
6.2.1.1 Concept and classification of technical standards
Standards have always been an important content in human life. From the composition of language (text), the composition of paper and envelopes
Size, measurement and voltage value, etc., to today’s software engineering and communication technology in the digital economy era, all
Create certain specifications and laws to facilitate communication between people and improve social efficiency. It can be said that the standard
It is gradually produced and developed in production and life, and it is also an indispensable "product". New Concise Cow
The Tianjin English Dictionary defines a standard as "a certain example or principle, which is followed or used by similar things as a standard
Measure the accuracy of similar things. " [214] Modern Chinese Dictionary standard is defined as" a measure of things themselves or guidelines
It is a thing that fits the criteria and can be compared and checked for similar things. "The national standard promulgated in the 2002 edition of our country
GB/T 20000-1-2002 "Guidelines for Standardization Part 1: General Vocabulary for Standardization and Related Activities"
The definition of the standard in China is: “In order to obtain the best order within a certain range,
A normative document approved by a recognized institution for common use and repeated use. "After the definition, there is a
Note: “The standard should be based on the comprehensive results of science, technology and experience to promote the best common effect
Benefit for the purpose. "This definition is actually also the International Organization for Standardization (ISO) and the International Electrotechnical Org
The accuracy of the standard is given in ISO/IEC Guide 2: 2004 "Standardization and Related Activities-General Vocabulary"
definition. [215] Among the various standards of human society, according to the professional nature, the standards can be divided into technical standards,
There are three major categories of management standards and work standards. With the advancement of science and technology and its impact on social e
The impact of life has increased, and the technical standards among them have attracted the most attention, highlighting an important position and becomin
For the focus of attention.
The so-called technical standards refer to one or a series of mandatory requirements or guiding functions.
Documents containing detailed technical requirements and related technical solutions, the purpose of which is to allow related products or services to meet
To certain safety requirements or market entry requirements. [216] With the development of economy and the continuous application of high technology
In people’s lives, product (service) specifications and related technical standards are playing in our lives
An increasingly important role. Because the standardization of product (service) specifications and technology can not only bring enterprises
The scale effect in production has also brought great benefits for consumers to use corresponding products and enjoy corresponding services.
convenient.
According to different perspectives, different classifications of technical standards can be made. According to whether it has compulsory power
It can be divided into mandatory standards and voluntary standards; according to the different geographical scope, it can be divided into international stand
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Standards, national standards and local standards, industry standards, local standards, corporate standards, etc. According to the content
The standards can be divided into product standards, process standards, and service standards. Among them, the relationship with intellectual property righ
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Closely there are interface standards, information technology standards, and so on. In terms of the research subject of this article, the following highlights
According to the classification of the standard formation process and its relationship with intellectual property rights: the technical standards are divided in
There are two major categories: formal standards and de facto standards. ①
The so-called formal standards are relative to de facto standards, which refer to those authorized by the government standardization organization or th
Standards that are announced, established and managed by standardization organizations in accordance with legal procedures. The formal standard can be f
Official standards (mandatory de jure standards) and consensus de jure standards (consensual de jure standards)
jure standards). The formal standard-setting procedure strives to be fair, non-discriminatory, and achieve extensive consultation
Unanimous. The formal standard incorporates the opinions of a wide range of stakeholders, including consumers, academics
It represents a consensus of current best practices.
In addition, the formulation of formal standards often discloses patents in accordance with the
The right holder conducts licensing negotiations on the application for the use of intellectual property rights and the applicant under the principle of reason
Compared with the de facto standards, the promise of
Difficulties in the application of standards caused by excessive licensing fees or discrimination of intellectual property rights. International official standard
There are ISO (International Organization for Standardization), IEC (International Electrotechnical Commission), ITU (International Telecommunications
Representatives of regional formal standards bodies are CEN (European Committee for Standardization), CENELEC (European Electrotechnical
Standardization Committee), ETSI (European Telecommunications Standards Institute), etc., and most countries have established their own national
Standard bodies, such as BSI (British Standards Institute), ANSI (American Standards Institute), etc. In terms of content,
Formal standards mainly target technical infrastructure based on public interest, and most of them are non-product standards. Like a bridge
Safety standards, food green certification standards, etc.
Factual standard refers to the situation that has not been recognized and managed by the standardization organization or any other official approval
In fact, most of the corporate standards and industry standards that are accepted by the market are manifested as product element standards.
The de facto standard can be divided into two forms: exclusive monopoly and joint operation of enterprises. The former is based on the market by a single
Product standards formed by monopoly advantage, such as Panasonic’s VHS dominating the world in the early video system,
At present, Microsoft’s Windows operating system and Intel’s microprocessors are even used by American scholars.
Call it "WinTel" the de facto standard. In practice, it is rare to have an exclusive monopoly on the de facto standard, but
Yes, once it is formed, it will often bring about anti-competitive consequences;
In order to avoid the adverse consequences of mutual competition, the industry cooperates and forms patent pools through cross-licensing of patents.
Issuing a joint licensing statement to the outside world, which constitutes another type of factual standard formed by the technical control of the entire indu
① There are also scholars who summarize this classification into three types: one is de jure standards, which are standards stipulated by national laws and regulations, generally
Involving safety, medical treatment, hygiene, etc., used to restrict the goods or services provided by the enterprise. The second is formal standards, which refer toStandards set by standard-setting organizations (standard-setting organizations, SSOs). Such standardization organizations can be domestic organizations orInternational organizations. The third category is called de facto standards, which refers to the technology used by the product to establish a dominant position in market competition.Technical parameters, compatibility characteristics and other indicators have been widely used and become industry standards. See Li Yingyi, Luo Junli. Combination of Industrial Standards and Intellectual PropertyThe problem of abuse of rights caused. Academic Research, 2005, 5:79. This article believes that there is no principle difference between this classification and the method adopted in the text.For the convenience of the following research, it is appropriate to follow the description in the text.
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allow. For example, the DVD industry technical standards and industrial technology standards and
W3C (World Wide Web Consortium). In this article, the practice of foreign scholars is adopted to divide this category
The standard is called "private standard setting organization (private standard setting organization) established
Common standards", the main reason is that such standards are always based on intellectual property, which is the basis of private rights.
Based on this foundation, and because of this, it is particularly important to pay attention to the intellectual property licensing and prevent anti-competitive
Is important. ①
In the context of the new economy, are the technical standards set by the state or relevant institutions or the market itself?
The choice, which is better or worse, is still inconclusive. Generally speaking, the national leading standard formulation does not have the necessary profes
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Knowledge, complex formulation procedures, standard selection does not meet market demand, low efficiency of standard formulation, etc.Some scholars have pointed out that the establishment of standards by the state may lead to the phenomenon of “regulatory capture” 2 . More importantly, t
It is difficult to circumvent the institutional barriers of intellectual property rights in the formulation of leading standards by countries or related institutions
Or relevant standardization organizations tried to avoid adopting technologies protected by intellectual property rights, such as the IETF
(Interner Engineering Task Force) earlier declared: “Try to use those non-patented technologies
Excellent technology, because the purpose of the IETF is to make its standards widely applicable. If patent issues are involved,
The application of the standard will involve the issue of the authorization of patent rights, thereby affecting people's interest in adopting the standard. " [217] B
In the current digital economy, especially in industries such as communications and software, it is difficult to avoid patents and copyrights in the establishm
Problems. Therefore, countries or relevant standardization organizations have established their own intellectual property policies, requiring their members t
License intellectual property rights for free or in a reasonable manner, thereby removing institutional barriers to intellectual property protection. This
The realization of the policy requires members to voluntarily abandon the pursuit of their own interests, and there is also resistance in practice. GSM standa
For example, in 1982, when CEPC (Commuttee of Engineering Professors
Conference) presided over the drafting of the GSM standard and required the companies that mastered the core technology to license the use of its propriet
Technology, otherwise the company will not be able to freely price communications equipment in the contract. This proposal was met with numerous
The patentee's strong opposition has delayed the introduction of the GSM standard. For this reason, the European Commission in 1988
Don’t set up an independent European standardization body-the European Telecommunications Standards Agency (European Telecommunications Standar
Telecommunication Standards Institute (ETSI). In 1993, ETSI introduced
The so-called default permission rule, that is, “if the right holder does not specifically declare, it is presumed that he agrees to be fair, reasonable, and
Non-discriminatory license, within 180 days after the standardization meeting incorporates the patented technology into the standard, the patentee
The right to ask for permission to withdraw. "This licensing scheme has been opposed by patentees including Motorola.
① It must be pointed out that the division of formal standards and de facto standards is also relative and falls within a certain category. A certain technical standard is within a certain rangeInside is a formal standard, but it may appear as a de facto standard in the spread of technical standards on a larger scale. Such as GSM is the official European UnionStandards, which are de facto standards in the world market. In this article, both formal standards and de facto standards refer to the meanings strictly regulated by the concepts in the text.② The theory of control capture starts from the interest orientation of government control, analyzes and judges the influence of various interest groups on the formation and orientation of control policies.And try to reveal the limitations of government control policies as a whole. The theory follows such a line of thinking that under the conditions of a market economy, government regulation can beThe disadvantages that can exist are analyzed. The important conclusion of the theory is that regulated companies take various actions in order to seek monopoly.The utility generated at the high level. Contrary to the hypothesis that government regulatory authorities are committed to pursuing the goals of social public interest, government regulation actuallyIt is produced to meet the industry’s need for regulation, that is, the so-called legislator is captured by the industry; and the regulatory authority will eventually be controlled by the industry.The so-called law enforcers are captured by the industry. The theory of regulatory capture has become the most challenging challenge for government regulation.
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right. Since only Motorola has 30 core technologies that support the GSM standard, there is no such
Support for the GSM standard cannot be implemented at all. In November 1994, ETSI finally decided that the patentee still has the right to decide
Is it permitted? [216]
The de facto standard is generally determined by the market, and it has the advantages of encouraging innovation, enhancing market competition, and
Contend (avoid political rent-seeking to set standards) and maintain intellectual property rights, etc., and at the same time increase market transfer costs
And monopoly costs. After the de facto standard has experienced market competition, the winning enterprise or joint venture capacity
It is easy to form a standard monopoly and endanger the market competition environment. In comparison, due to technical standards in the context of the n
The technology with intellectual property rights cannot be avoided, and the competition of de facto standards is the competition of technological innovation
The property rights policy has been used to the greatest extent, while at the same time it has further stimulated innovation, increasing in the long run
Social welfare, so, except for a few technical standards related to personal health, safety and other major public interests
Apart from being formulated by the state, technical standards in most industries are de facto standards. On the other hand, the de facto standard
If the standards are developed to a certain level, they will seek to be adopted by the state or relevant agencies and become legal standards.
All in all, whether it is a statutory standard or a de facto standard, as long as it involves intellectual property rights, it cannot
Regardless of the standard intellectual property licensing policy and the anti-monopoly issues that it brings.
6.2.1.2 Combination of technical standards and intellectual property rights
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Technical standards and intellectual property rights are inherently contradictory in nature: standards use common technologies,
Common sense technology and public knowledge, widely used technology, while intellectual property protection is proprietary technology, innovative tech
Technology, a technology that can only be used with permission. In the industrial age, since the application of science and technology in production at that
It is mechanized and electronic, and technical standards are gradually formed in the development process of its own industry,
Associations and other organizations have established formal standards. These standards often involve the appearance and performance characteristics of p
The scope of protection of intellectual property law such as production processes and technical solutions belongs to performance standards (performance st
standards), the product market is not as integrated with each other as it is today and requires products around the world to have
Universal compatibility, so there is no obvious difference between standards belonging to the public domain and intellectual property rights belonging to pr
conflict. Since the 1990s, the situation has changed a lot: the typical feature of the new economic era is knowledge
The input and output of the industry, and knowledge-centric industries occupy an increasingly important position in the entire economy.
The intellectual property protected by the Intellectual Property Law has become the central driving force to promote industrial progress and improve social
In this general environment, as a ubiquitous technical standard in human social life, it is no longer possible to bypass the
The technical specifications protected by intellectual property rights only take the achievements of public intelligence as the content. Especially in de facto
During the production process, due to network effects and other factors, the technical solutions,
Methods or technical parameters have firmly locked the market, and latecomers have to follow in order to be competitive in the market.
This standard, and this standard is obviously based on the intellectual property rights of leading companies. Therefore, the standard
In particular, the combination of de facto standards and intellectual property rights is the inevitable result of industrial development in the information age.
In terms of the development approach of combining standards and intellectual property rights, one is the formal standards developed by the standardi
Including more and more patented technologies. According to statistics from the European Telecommunications Standards Institute (ETSI), GSM mobile
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The number of patents included in the communications standard was 380 in 1998, and by 2004 it had exceeded 3,600. [218]
Second, the private technology of enterprises protected by patents obtains market dominance through competition and becomes the de facto standard of the
allow. The “Private Agreement” of Cisco of the United States was only a corporate standard at the beginning, but due to its
Domain monopoly, this private agreement has in fact gradually evolved into an industry standard and an international standard.
In terms of content, the technical characteristics of technical standards make the intellectual property rights contained in most technical standards
Reflected as patent rights. In the Internet industry, because the computer software copyright protection applicable in most countries, ① its line
Industrial technical standards also contain a considerable amount of copyright. ②Take patent rights as an example to illustrate the relationship between standar
Combining methods: (1) The technical elements of the technical standards include provisions or index requirements for a certain product function, and
Patented technology is a specific technical solution to achieve the requirements of the regulations or indicators. Although this kind of technical elements
The content contained is not literally consistent with the claims of the patent right, but the patented technology is the technical standard
Ways to achieve and technical support. For example, the CR regulations promulgated by the European Union in 2002 stipulated that the export price was 2
Lighters below Euro must be equipped with a "safety lock" that prevents children from opening, and a "safety lock" must be installed
Use the patented technology on "safety lock". (2) The technical elements of the standard involve certain characteristics of the product,
And patents are the technical means to achieve these features. At this time, the features stipulated by the technical standards and the requirements of patent
There is some overlap in the description in the book. (3) The technical elements of the standard include all the technical features of the patented technology
At this time, the literal content of the technical elements constitutes a complete patented technical solution. [219]
6.2.1.3 Intellectual property licensing in the standard
The technical standards of the new economic era cannot bypass the "intellectual property thorns", and the private nature of intellectual property make
Whether it’s the state or relevant agencies formulating formal standards, or the implementation of de facto standards by joint ventures, as long as the techno
Technical solutions protected by intellectual property rights are adopted in the standards. In the promotion and use of the standards, consideration must be g
Obtain relevant authorization to avoid infringing on the legal intellectual property rights of others. As for the de facto standard of exclusive monopoly,
It is basically a question of profiting from intellectual property licensing. Therefore, as a technology in the era of knowledge economy
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From its formulation to implementation, the licensing of intellectual property rights is always a critical step. Some of the international community
More mature standardization institutions have set up special intellectual property management departments to formulate their own intellectual property pol
This fact proves the importance of intellectual property licensing in standards from a practical level.
First, the licensing of intellectual property in formal standards. In the formulation of formal standards, the standard-setting machine
The public welfare nature of the organization determines its neutral position on intellectual property licensing issues in technical standards. Generally
It is said that the standard-setting bodies first try to avoid adopting technical solutions with meaning intellectual property rights in the standards.
In the case of avoidance, the organization can allow the standard to include intellectual property rights, but is not responsible for the licensing of the intelle
Negotiation matters, but to determine the use of intellectual property rights in the standard through the right holder’s own licensing statement.
①Of course, this article also noticed that in the United States, the European Union and other developed countries, research and legislation on software protection patents are being carried out.②In the process of formulating and producing technical standards, trademark issues are basically not involved. However, this article also noted that once the technical standard is established, its authorization
There was a trademark identification problem in the process. As for the proprietary technology, because it involves trade secrets, it is contrary to the openness of the standard, and generally will not become the standard.content.
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So, in a nutshell, the licensing of intellectual property rights in the formal standards is based on the agreement between the licensor and the licensee
The licensor gives the standard organization's commitment in advance, and the standard organization itself generally does not intervene.
In order to achieve optimal coordination of products, technologies and markets, reconcile intellectual property owners, licensees and consumers
Conflict of interest of the public, mature international standards organizations try their best to seek intellectual property in their own intellectual property p
Free license or reasonable, non-discriminatory license from the right holder. The following is a list of ITU (International Telecommunications Joint Venture
The policy is explained: First, the neutral status of the ITU. ITU is only responsible for collecting relevant intellectual property information,
It does not intervene in the review of the validity and practicability of patents, nor does it intervene in patent disputes. Second, information as early as poss
Principles of disclosure. ITU requires its members to do their utmost to pay attention to patented technologies related to ITU standard proposals,
And report to the Telecommunication Standardization Bureau of ITU as soon as possible. Third, the principle of requiring the right holder to make a statem
In the process of standard establishment, a formatted text will be provided to the right holders that ITU already knows, and ITU standards are required
The patentee of the patented technology involved issued a statement on this. [220] After obtaining the above license declaration file, once
The standard is established, and it is expected that companies or individuals that use the standard can rely on the document to negotiate with the patentee.
Authorized. If the patentee refuses to sign the above declaration document, the ITU will seek another technical solution
To avoid or replace the patent. If it cannot be avoided or replaced, the technical standard proposal containing the patent will be
Set aside.
It’s worth noting that in the formulation of formal standards, especially mandatory standards, if it involves
Technical solutions for the protection of intellectual property rights, and the right holder’s license cannot be obtained through the above licensing policy, th
May involve the issue of compulsory licensing. For example, in the DVB standard, ATSC (Advanced Television System
Committee) The standard joint venture will require the technical expert group to review and re-evaluate the need for the patented technology.
It also demonstrates the possibility of developing alternative technologies through surrounding R&D to circumvent this patent. Otherwise, DVB will
Its government consultant consulted for instructions on further action. ATSC is also to its Standing Committee (its Standing Committee consists of the Unit
(5 major organizations including radio and television joint ventures) request instructions for further action. Working rules for the joint operation of various
Although Cheng Zhong did not give a specific explanation on the "further action", according to the relevant international conventions on patent rights, they
To exercise the compulsory licensing system of the Patent Law: without the consent of the patentee, the third party is allowed to use technology through ad
Technical patents. [221]
Second, the licensing of intellectual property rights in the process of establishing de facto standards for joint ventures. Factual Standards for Enterpris
Quasi is actually an advanced form of technology pooling discussed in the first section of this chapter, or technology pooling
The successful form of the company has the general characteristics of joint ventures, but as the setter of de facto standards, standard-based public welfare
This kind of intellectual property joint operation also has its own uniqueness in intellectual property licensing: it is mainly manifested in the
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Licensing rights restrictions and the examination and approval of essential patents have highlighted the publicity, public welfare and intellectual property riThe balance of private rights. Therefore, some scholars describe it as "a dance on a wire rope."
In terms of intellectual property licensing, the process of establishing de facto standards is similar to that of formal standards.
Generally, two methods are used: free license or reasonable license. Such as the intellectual property licensing policy proposed by W3C in 2001
, The right holder promises to license those who wish to use the intellectual property in a reasonable and non-discriminatory state,
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Call it a RAND (reasonable, non-discrimination) license, which promises a free certificate from the right holder
Licenses to those who wish to use the intellectual property rights in a state are called RF (royalty free) licenses. [222]
In addition, in the process of formulating de facto standards, due to the public welfare and openness required by the standards, it is necessary to
The examination and approval of patents is higher than that of general technology pooling. In the technology pool, are all the patents
The patent (usually a complementary patent) is a key factor in determining whether the joint venture is anti-competitive. must
There are two requirements for a patent. One is that the patented technology is indispensable and irreplaceable. The second is the special
Li technology has a direct connection with the product or method applied by the standard. Only if it is determined as an essential patent can it
Adopted by technical standards. [223] For example, the 3G Patent Platform has set up a
"Patent Evaluation Mechanism" (Patent Evaluation Mechanism) that can perform less evaluation
Administrator), and has a prescribed evaluation procedure to confirm the importance of a certain intellectual property to the standard.
It is called "Essential Patents Pool" in the DVB standard, and also called "Essential Patents Pool" in the MPEG-2 standard
"Essential Patents Portfolio". In addition to reflecting the technical management
In addition to the role of the face, it is also an important indicator to measure the technical content and level of the technical standard joint venture. exampl
For example, the core technology of the MPEG-2 standard comes from more than 10 universities and enterprises, including the famous California
University, Philips, Sony, Toshiba, France Telecom, Fujitsu, Canon, etc. Based on this, MPEG-2
Established a joint patent portfolio (Patent Portfolio), which brings together 394 “must
Patents.” Essential patents are so important that technical standards joint management agencies must apply for patent holders.
Please obtain the license for these patents. For example, the DVB standard joint venture has an active request procedure: once a technology is
ETSI discovered and believed that it might be the intellectual property rights of “essential patents”, and the director of ETSI quickly requested the technolo
The holder shall give written permission to the DVB standard joint venture within 3 months. Strive to obtain the "necessary professional
During the licensing process of "li", there will naturally be rejections. In view of this, the DVB standard, ATSC (Advanced
Television System Committee) The Standards Alliance will require the technical expert group to review and re-evaluate the
The necessity of a patented technology, and demonstrates the possibility of developing alternative technologies through surrounding R&D to circumvent th
Otherwise, DVB will consult its government consultants for further instructions. [221]
After the de facto standard is established, the external licensing model is generally divided into only one-stop licensing (by the standard management
Unified license) and one-stop license and separate license coexist. For details, please refer to the first section of this chapter.
Related content of the camp.
6.2.1.4 Intellectual Property Standardization Strategy
The internationally renowned standardization expert Sanders put the standard
The definition of “standardization” is: “Standardization is for the benefit of all parties concerned, especially to promote the best economy,
And give due consideration to the use conditions and safety requirements of the product, and carry out an orderly operation with the cooperation of all relev
The process of formulating and implementing various regulations for specific activities. Standardization is based on the comprehensive results of science, t
As a basis, it not only lays the current foundation, but also determines the future development. It has always been in line with the development
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Keep pace" [216] In our production and life, from power outlets to computer modems, standard
Chemical products are everywhere, greatly improving the production efficiency of society.
Intellectual property standardization is one of the manifestations of standardization in the new economic era, or compared to industrial
The technical standards of the era, we can call it standard intellectual property rights, in general, it can be interpreted as a certain
The technical solutions, parameters or expressions contained in an intellectual property are established as a certain type of product (service)
Therefore, if you want to produce similar products (services), you must use the technical solution, parameter or expression method.
In order to achieve compatibility with standard products or meet safety and quality requirements, it involves
Legal issues such as licensing. Intellectual property standardization has a particularly important strategy for intellectual property owners.
Strategic value: First of all, it greatly expands the scope of licensees and greatly enhances the profitability of intellectual property rights.
As mentioned in Chapter 1 of the paper, intellectual property licensing is the main way for right holders to realize their economic returns, based on
The public product attribute of intellectual achievements, under the premise that the marginal cost is zero, the more licensees, the right holder’s
Earnings show a trend of net growth. In the context of the new economy, the standardization of products or services is the prerequisite for entering the mark
Conditions, once a certain intellectual property is included in the technical standards, it is expected that the main provider of similar products or services
All entities must seek intellectual property licenses from the right holders, that is to say, the so-called "third-rate enterprises work hard, second-rate enterpri
Industry sells products, first-class enterprises sell technology, and super-first-class enterprises sell standards. Secondly, it is conducive to intellectual proper
Right holders use the exclusivity of intellectual property rights to exclude competitors or potential competitors and gain market dominance. Either
In order to add additional conditions to the issuance of licenses, it is also possible to restrict the issuance of licenses to prevent most companies from
The industry enters the market, thereby reducing the pressure of competition in the market. In 1999, it has the core DVD production technology internation
The 6C alliance formed by the 6 companies in China and China’s DVD manufacturers have issued an issue on the royalty of DVD patents.
There was a dispute. As the patentee of the core DVD production technology, the 6C Alliance
Almost all technologies for DVD production are covered, and it has become the "de facto standard" for global DVD production. Jian
The products produced by DVD manufacturers in my country are of high quality and low price, and gradually occupy the overseas market and have further
Therefore, in order to drive my country’s DVD products out of the international market, they gave my country’s DVD manufacturers
A high license fee has been added. This use of the intellectual property rights associated with technical standards
The act of squeezing competitors has actually constituted the object regulated by the anti-monopoly law. Third, have greater talk
Judgment advantage. When the “locked” technical standard user has no other choice, the owner of the intellectual property right can
In order to obtain a higher price, standard users can also be required to exchange their own patented technology to obtain
It requires technology that is difficult or impossible to obtain under normal circumstances.
Based on the above main reasons, the standardization of intellectual property rights is not only a client in the standardization process.
This phenomenon is a strategic choice for intellectual property rights holders to compete in the market and seek high profits.
Intellectual property standardization strategy. Qualcomm is a typical representative among them. As a leader in communication technology,
Qualcomm has been committed to developing new technologies and obtaining patents, thereby profiting through a wide range of licenses. company's
R&D expenses have tripled in the past 5 years, from US$340 million (10.6% of the company's total revenue in fiscal year 2000)
Increased to 1.01 billion US dollars (17.8% of the company's total revenue in fiscal year 2005). Qualcomm has invested a total of 5.9 billion
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U.S. dollars for research and development (as of June 25, 2006). It is precisely because of this continuous and large investment that the company
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The number of patents in the patent pool continues to increase, and all patents in the patent pool as a whole can be
Used by mobile phone and system equipment licensors—different from many other companies, only one of their standards
The core patents are licensed to licensors. As of June 2006, the company has a total of more than 25,000
Obtained patent rights and patents under review (approximately 7,000 patent rights have been granted), with more than
4,800 patents have been obtained and patents under review (approximately 1,800 patents have been granted). [224]
From an international perspective, not only some multinational companies with large amounts of intellectual property rights are implementing intelle
The technology-advanced developed countries are also supporting the standardization policy. September 1998, American Standards Institute
(ANSI) and the National Institute of Standards and Technology (NIST) jointly held a seminar on the formulation of a US standardization strategy
At the meeting, a resolution was made to formulate a national standardization strategy in the United States, and a leading group was established with memb
Governments, chambers of commerce, industry, industry societies and other organizations. After two years of hard work, on September 7, 2000
Completed the task of formulating the national standardization strategy of the United States. On October 28, 1999, the European Union adopted the Europe
The board resolution "the role of European standardization" strategic resolution. The core of the strategy is to establish a strong European standardization
The system has a greater impact on international standardization, undertakes more secretariat work, and strives to integrate European standards
Recommended as an international standard, and strive for the initiative in international trade. June 1999 to September 6, 2001, Japan
The government personally organized the formulation and invested 5 billion yen in special funds for this purpose. It took two and three months to complete
The task of formulating standardization strategy. The core of the strategy is to strengthen the industry's participation in international standardization activiti
Establish a technical standard system that adapts to international standardization activities; compete for the highest leadership in international standardizati
Compete for the dominance in the formulation of international standards, and promote international standardization strategies by strengthening cooperation
To achieve the goal of establishing a country based on technical standards. [225]
For industries and enterprises in developing countries that lack patent rights, the intellectual property standardization strategy is
A serious challenge. The DVD case mentioned above is a typical case of Chinese enterprises feeling the power of standards. Since 2002,
The International DVD Alliance used WTO rules to increase its efforts to demand patent fees from Chinese DVD manufacturers.
The patent fee paid by domestic enterprises whose technical standards are “locked in” for every DVD product exported accounts for the price of the produc
The highest percentage is 20%-30%. As a result, many domestic companies have stopped the use of ordinary DVD products.
Export. Since then, in order to achieve the purpose of squeezing out China’s Huawei, Cisco refused to authorize Huawei’s corporate
The company uses its extensive use of proprietary protocols in the router operating system to prevent Huawei’s routers from interacting with
Its equipment is interconnected. As we all know, data communication equipment is the same as telecommunications equipment. Interconnection is a fair co
Basic elements of the dispute, and Cisco uses a private agreement to reject the interconnection of Huawei’s equipment. In fact,
It is an attempt to monopolize the market by using patented technology standards. As a developing country, China’s technology
The technological innovation ability is still very weak, and generally belongs to the countries where technology is introduced and patents are used. Especia
In the important high-tech fields, the industry standards and national standards of many products are still blank, and domestic enterprises are also
Without the ability to provide, this enables a large number of foreign products to pass the market smoothly and become the de facto standard of the corresp
Some multinational companies have consciously applied for a large number of relevant technical standard patents in China, in order to obtain such product
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Domination of the industry. Therefore, how to make full use of international advanced technology to enhance the development speed of my country's high-
At the same time, safeguarding the interests of the country and the industry is a severe challenge currently facing our country, and one of the most importan
It is the anti-monopoly regulation of the intellectual property rights of technical standards.
6.2.2 Analysis of Anti-Monopoly Law in the Process of Technical Standardization
6.2.2.1 Analysis of Causes of Monopoly Formed by Technical Standardization
The so-called "the one who obtains the standards gains the world" is a subtle summary of the intellectual property standardization strategy in the new
Whether it is Microsoft’s giant status, or my country’s continuous payment of huge license fees in communications, DVD and other industries,
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The support of the TD standard by the Ministry of Information Industry of our country reflects that in the new economy, it is not only the competition of te
It is more standard competition. And the reason why technical standards have such an unprecedented powerful power, in summary, the main
Have three aspects: First, network effects, and second lock-in effect, ① third is intellectual property protection.
As we know from the previous article, the reason why technical standards have exerted such great power in the new economic environment is due to
Because of the network effect and consumer lock-in effect. As an enterprise’s competitive strategy, the intellectual property standardization strategy is
It is because the technical standards that include intellectual property rights are also shrouded in the legal wings of intellectual property exclusivity.
Under the dignified protection. Technical standards should be open, public, and public in nature.
Beneficial, and the intellectual property rights of technical standards have made the standards private to a certain extent, thus
Intellectual property owners have reaped huge profits. If there is no protection of intellectual property rights, regardless of the technical standards of the ne
How strong the effect and lock-in effect are, it is impossible to become a competitive tool to serve private interests.
In the context of network effects, lock-in effects and intellectual property protection, different competitors and facets in the market
Pro different competitive landscape and strategic choices.
For manufacturers that already have a considerable user base (ie, installation base), on the one hand, it strives to
Promote your own technical standards to become the de facto standards of the industry, especially for other products that match your own products
(I.e. products of different quality, such as computers and operating systems, DVD players and discs)
The large indirect network effect increases the confidence of consumers to buy their own products, thereby further expanding the market share,
Increase the scale of demand for products and enter a virtuous circle. On the other hand, for homogeneous products, whether to promote
Compatibility depends on the network effect and competition effect produced by product compatibility. If
Network effects dominate, then manufacturers have the motivation to implement product standardization; on the contrary, if competition effects dominate
Status, then manufacturers do not have the motivation to implement product standardization, because compatibility strengthens the competition of homogen
Intensify competition between products of different manufacturers. At this point, Katz and Shapiro (1986) proved that small businesses
It has more motivation for product standardization than large enterprises. [226] For example, Microsoft has been promoting standardized distribution with comp
But firmly grasp the exclusive manufacturing of the software manufacturing industry, and prevent other software manufacturers’ products from
Compatibility of its own operating system and application software is out of competitive strategy considerations. Private property
Sexuality is the legal guarantee for the holders of de facto standards such as Microsoft and Cisco to exercise their competitive strategies.
① For specific content such as network effects and lock-in effects, please refer to Chapter 2, Section 3, Special Provisions of Anti-Monopoly Regulations in the New Economy.
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For new entrants in the industry, can their products be compatible with mainstream products and ancillary products?
Compatibility in technical standards is a key factor in determining its entry into the market. Therefore, obtain the technical standards of the industry
Legal use is a prerequisite for allowing potential competitors to enter the market. In this technical standard contains intellectual property
In the technical solutions included in the rights, if the standard public welfare is not considered, only in terms of the exclusivity of intellectual property righ
The right holder essentially has the ticket for potential competitors to enter the market.
It is precisely because the technical standards combined with intellectual property rights have strong competitiveness, so market competitors always
It is to make full use of various means to make the technical solutions protected by intellectual property rights become technical standards, so as to commu
Obtain rich returns through intellectual property licensing. In practice, it often manifests itself as a refusal to disclose information (or false
Disclosure), delay in claiming intellectual property rights, and denial of licenses and other competitive strategies. The following mainly combines relevant
Case analysis.
6.2.2.2 Information disclosure issues in the standard setting process
First, the information disclosure policy in the standard setting process. In the process of formulating technical standards, whether it is
Official standards or de facto standards ① , if intellectual property rights are worthy of attention problems in technical programs. like
As mentioned above, in the context of the new economy, technical standards cannot avoid intellectual property rights. Therefore, including international sta
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The standard setting and management agencies including the organization do not oppose—more importantly, they cannot oppose—the standard containsintellectual property. In this case, the contradiction between the public welfare of standards and the private rights of intellectual property rights depends on
To reconcile the intellectual property policies of regulatory agencies, information disclosure has become a prerequisite for accomplishing this mission
condition. Simply put, the organization must first determine whether a certain standard contains intellectual property rights, which intellectual property righ
Only then can they complete tasks such as seeking permission from the right holder in accordance with their own intellectual property policies. So most
Standardization organizations impose explicit or implicit obligations on their members, requiring them to disclose the intellectual property rights they know
As a result of the existing international standards organizations with greater influence, their intellectual property information disclosure policies are general
The following practices: (1) Disclosure content. Although the intellectual property rights involved in technical standards include trademark rights and copy
However, patents are the main content. Therefore, most standards organizations mainly stipulate patent disclosure policies. exist
The difficulty in patent disclosure is whether to disclose the ongoing patent application status of a certain technical solution. Because
Patent applications include both published applications and unpublished applications, and the latter may involve applications
Human business secrets. However, if the issue of patent application is not considered, once a certain technical standard is established, and among them
Contains the technical solution that is in the patent application stage, and then the application is approved, the standard is facing challenges
The dilemma of giving up or restraining the patentee is particularly complicated in the establishment of de facto standards.
According to the empirical analysis of current standardization organizations, most standardization organizations only require the disclosure of authorized p
Several standardization organizations have also considered pending patent applications, but do not require disclosure of it because they are generally still
Keep it secret. The two standardization organizations of the International Telecommunications Consortium and the Open Service Gateway Innovation Asso
Granted patents and pending patent applications. The other two standardization organizations seem to be in between: 58A Forum requirements
① The de facto standards referred to here only refer to the de facto standards set by the privatization standard-setting institutions such as enterprise joint ventures, and do not include the fact that the de facto standardsThe de facto standard for the exclusive monopoly formed by soft companies.
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Disclosure of published patent applications, but there is no need to disclose unpublished patent applications. 456 Forum only requires those
Members supporting the proposed standard disclose all situations including unpublished patent applications. [227] (2) Disclosure
program of. Generally speaking, standardization organizations require members to disclose what they know or should be aware of when submitting propos
The intellectual property rights contained in the technical standards developed, such as the ISO/IEC guidelines on patent disclosure: “If
If an ISO international standard submitter has a patented technology in the technical proposal during the preparation process for submission for deliberation
The following procedures should be followed: the submitter should submit to ISO’s Technical Committee TC (Technical
Committee) and Sub-Committee (Sub-Committee) pay attention to what they have found and prepare to
The patented technology adopted in the proposal. Any party participating in the standard proposal should also submit to ISO’s TC and SC
Pay attention to the patented technologies that you have discovered and plan to adopt in the technical standards.” Although the principle of information dis
The major standardization organizations’ attention, but due to the compulsory power of the standardization organization’s
Is not significant, and most of them are just rough definitions. Therefore, in practice, there are often
The tension between standards and intellectual property rights caused by insufficient comprehensiveness.
Second, as an intellectual property strategy, refusal to disclose and false disclosure. In the previous article, this article discussed the
The importance of standardization in the contemporary economy, especially in the network economy. Network effects make the product (service)
Compatibility has become a key factor in whether it can enter the market, and to meet the requirements of compatibility, use this type of
The technical standards of products (services) are the only way to go. If a company owns intellectual property rights to a certain technical standard,
It is equivalent to having the right to issue admission tickets to competitors entering the relevant market.
Do not open.” Because of this, when standardization organizations formulate standards, they pay special attention to obtaining all the technical solutions.
Licensing of rights holders containing intellectual property rights, thereby maximizing the coordination of the efficiency brought by industry standardizatio
Contradictions with the private interests of intellectual property owners. From another perspective, a certain technical standard that contains intellectual pro
Once the license is established and widely implemented, the right holder can obtain patent licenses from the entire market where the standard is used.
It can be paid (as long as it is not a free license), and its rich return is not derived from its own intellectual property rights, it is better to boil down to
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Technical standards containing the intellectual property rights. What's more, in the network effect theory, a certain technical product (service) is
In terms of sales strategy, the first priority is market share rather than profitability. After the phenomenon of consumer lock-in,
Can obtain stable or even excessive profits. Based on the above two reasons, companies or individuals with intellectual property rights
On the one hand, people actively participate in the formulation of standards, invest heavily, and strive for technical methods that contain their own intellect
The project became the finalized technical standard, so as to obtain a higher market price for its technical products (services).
Pave the way for market occupancy; on the other hand, right holders are unwilling to
The promise of intellectual property licensing, especially the promise of free licensing. With this motivation, the owner of intellectual property
It is not surprising that various explicit or implicit speculative behaviors on information disclosure were adopted during the standard formulation stage.
To itself is an intellectual property strategy of the enterprise. The Dell case in 1995 and Wang in 1998
The Laboratories, Inc. v. Mitsubishi Electronics case is a representative case.
In 1994, Dell participated in a joint project for audio and electronic standards.
Association (Video Electronics Standards Association, VESA) standard work, the
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The technical subject involved in the standard is to design a central processing unit and external
Technical solutions for transferring guides between devices. In the early stage of standard establishment, the standard proposal group requested standard fo
All parties of the company declared the intellectual property rights related to the technical solution, but Dell did not declare, and its representative also wro
A guarantee was given that "as far as I know, this standard proposal does not infringe any patents of Dell." But in fact
Dell has obtained a patent license. Later, after the standard was formulated, it was widely used. At this time, Dell
The company requires companies that use the standard to charge royalties. These companies sued Dell
The Arbitration Tribunal of the State Trade Commission. The Federal Trade Commission ruled in 1996 that Dell had violated good faith
Principle, violates the internal regulations of the standardization organization, and fails to disclose any
Regarding patents, but claiming its intellectual property rights afterwards. Therefore, Dell has no right to charge royalties. also,
The Federal Trade Commission also issued other opinions: (1) The Federal Trade Commission does not plan to pass this case to determine,
Recommend or newly announce a so-called "standard procedure" on standard setting; (2) Federal Trade Commission
It is not considered that the disclosure obligation against Dell in this case is the basic obligation of all parties in the standard setting procedure.
This obligation should be treated individually in different cases. [216]
A typical case where there is a duty of presentation but silence is Wang Laboratories, Inc. v.
Mitsubishi Electronics case. In this case, because the patentee maintained
Silent, and stated to its users that its standards are open, and thus was sentenced to prohibit the enforcement of its patents afterwards.
The inventor of the plaintiff’s patent participated in the United States Joint Electronic Device Committee, which is responsible for standard setting work.
(Joint Electronic Device Council, JEDEC) activities, in response to the manufacturer’s
Before the memory format was determined, how the memory market would develop, he expressed the SIMMs recommended by the plaintiff
(Single In-line Memory Modules, single-line memory modules) technology will determine the memory format
Catalyst. He further stated that the plaintiff would not produce SIMMs memory, but encouraged other manufacturers to produce
Produce. A member of the plaintiff’s standard-setting group also stated that although SIMMs have applied for a patent, the original
The report will not exercise patent rights on SIMMs memory. The above content was widely reported by the commercial media in 1983.
From 1983 to 1989, the plaintiff has been pushing JEDEC to accept SIMMs as a memory standard, and
It was a success. However, during this period of time, the plaintiff did not disclose to JEDEC that he was always conducting SIMMs.
Patent application work, and obtained two related patents in 1987 and 1988 respectively. When the defendant presses the mark
At the time of quasi-production, the plaintiff claimed infringement of its patent rights. The court held that the defendant should not bear tort liability becaus
The defendant’s behavior indicated that it had implicitly permitted others to use its patent for free, and the plaintiff’s behavior made the defendant have
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The reason was that his behavior was in line with the requirements of the plaintiff and was agreed to by the plaintiff. [228]
Third, the delayed disclosure of intellectual property rights in the de facto standard. In the process of forming the de facto standard, in addition to the
The quasi-making institutions jointly formulate industry technical standards in the form of technology joint ventures, and there is also a way of
Later, the way to form a de facto standard. In the latter approach, there are often several similar technologies in the market at the beginning of the market.
In the competition, the one that stands out in the end becomes the de facto standard and is rewarded with "winners take all". And become
"Winner", in addition to technical advantages, the competitive advantages based on network effects and lock-in effects are
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Time is more critical. In fact, it is not necessarily the best technical solution in the competition that becomes the de facto standard.
It is often a technical solution with a broader installation base and other market competition strategies. under these circumstances,
Similar to the refusal to disclose or false disclosure in standard setting, de facto standards are formed in market competition
In the process, many intellectual property owners did not claim their own intellectual property rights in the early
It’s free to use. When the market acceptance is mature, the market share has been guaranteed, that is, the network effect has been
After the consumer is locked in, the charging permit is then carried out. Because there is no unique standard setting machine in market competition
Organization, let alone the obligation of information disclosure. Therefore, this kind of competitive strategy compares favorably with the de facto standard
It's all.
6.2.2.3 Anti-monopoly regulations in the standard setting process
Regarding the private rights of intellectual property rights and the disclosure of technical standards due to incomplete information disclosure in the st
Conflict between benefits, especially speculative firms like Dell’s attempt to occupy the market with the promotion of standards
Therefore, there are roughly the following theoretical and practical practices:
First, it is forbidden through the principle of estoppel in equity. The so-called doctrine of estoppel
The estoppel) principle means that a party cannot claim that a certain damage is eligible for reliance due to its own behavior.
This act and the rights of the other party acting accordingly. [229] Information disclosure issues in the standard setting process
According to the above, this principle applies to the misleading behavior of the right holder to make the infringer reasonably infer that there is no infringem
Liren will not enforce the conclusion of its exclusive rights against the infringer. Use the doctrine of estoppel as the
The defense of similar infringements generally requires the following elements. (1) There is a misleading statement, or there is an obligation to make a stat
But keep silent. In the process of standard formulation, the members who joined the standard assumed the responsibility of disclosing intellectual property
Services, especially with regard to the intellectual property rights owned by oneself, must be explained in the relevant documents and show their attitude.
For example, in Dell’s case, Dell claimed that “as far as I know, this standard proposal does not infringe any of Dell’s
The guarantee of “patent” is a typical misleading statement. However, we should note that when examining this element
There are the following difficulties: First of all, not all standard setting and management institutions have detailed intellectual property policies.
In a standard-setting body that does not have similar policies, can the silence of the right holder constitute an element of the prohibition of estoppel? Not to
In the de facto standard competition within the industry, not all standardization organizations will be formed, let alone the organization charter.
And intellectual property policy. Secondly, even if there is an intellectual property disclosure policy, if only disclosure is required
For granted patents or published applications, keeping silent on applications that have not yet been published does not violate the obligation of representati
(2) The infringer has trust, and his behavior is based on that trust. The principle of estoppel requires that because the right holder
The act or omission of the infringer gave the infringer a reasonable trust and took certain actions based on this trust.
Breaking this trust will materially harm the interests of the infringer. In the standard formulation process, due to the intellectual property
The false statement or silence of the right holder makes the standard user believe that there will be no risk of infringement of intellectual property rights.
Instead, activities such as investing in the construction of factories and purchasing raw materials for the production of technical products have been carried
In reality, the use of estoppel to restrict the interests of intellectual property owners is a manifestation of legal balance. U.S. Federal Circuit
Back to the court in the Wang Laboratories, Inc. v. Mitsubishi Electronics case
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A more detailed description: "...the root of trust harm or damage is not the same thing, although the difference between the two
Often confused. The infringer may build a factory without any awareness of the patent rights, and as
As a result of the infringement, the infringer may not be able to use this facility. Although he has been harmed, the infringer does not
Can explain the trust in intellectual property rights. In order to demonstrate their trust in the right holder, the infringer must talk to the plaintiff
There is already a certain relationship or exchange between them, and it is this relationship or exchange that gives the infringer a kind of safety
feel. ……" [228] If the above description is adopted for trust, the technical
In the process of technical standards, sufficient trust will be generated among the members participating in the standard formulation. In non-institution
The implementation of standards by members is more complicated. It must be examined whether it is based on the false statement or silence of the right ho
The latter often fails to generate trust recognized by the court. In the industry’s de facto standard competition, this kind of trust
Lai is more difficult to obtain. As mentioned above, in information industries such as communications and the Internet that pursue network effects, certain
Technical products (services) were initially based on the premise of maximizing their market share, so many times
The technology or product (service) is free to use and license, until enough consumers are acquired and through the network
After the effect has locked consumers in, they can obtain generous returns by claiming intellectual property rights. Typical examples are mutual
GIF standard for networked chart file exchange, mp3 technology and WAP for mobile communication that is now all around the world
technology.
Precisely because of the above-mentioned difficulties in applying the estoppel principle, some scholars have proposed to abuse intellectual property r
Use principles to regulate this speculative behavior. However, the principle of abuse of intellectual property rights currently plays a major role in regulating
It should be reflected in the refusal to license or the addition of conditions restricting competition to the license, and the license is only based on intellectua
The behavior of fees is difficult to limit. More importantly, whether it is the estoppel principle or the principle of intellectual property abuse
Therefore, they are all defenses when the standard implementer is accused of infringement of intellectual property rights as the defendant, that is, “yes
Shield instead of spear". Therefore, to actively regulate this type of behavior, the anti-monopoly law is a better choice.
Second, anti-monopoly laws and regulations. As mentioned earlier, regarding the relationship between intellectual property rights and antitrust laws,
The current consensus is: the exclusivity of intellectual property itself does not mean that it will certainly obtain a monopoly. but,
Once the intellectual property rights and standards are combined, the situation changes: through the development of technical standards that include intellec
Quasi, the right holder can exercise exclusive control over the market and thus obtain a dominant market position. Therefore, it must be
Technical standards that include intellectual property rights regulate licensing policies, while knowledge of attempts to evade such regulations
As far as property owners are concerned, it is very necessary to conduct anti-monopoly law review.
According to the anti-monopoly law represented by the Sherman Act regarding market dominance and attempts to monopolize
To determine whether a certain behavior violates the anti-monopoly law, there are three elements as follows: (1) The right holder does not disclose or
There is a causal connection between false disclosure of information and the adoption of the standard by the standard-setting body. Announced in the stand
Include technical solutions containing intellectual property rights as technical standards or although technical standards containing intellectual property righ
However, under the premise of free permission from the right holder, refusal to disclose information or false promises not to exercise exclusive
There is a significant causal link between the right and the adoption of this standard, as in the above-mentioned Wang Laboratories, Inc. v.
Mitsubishi Electronics case; however, most current standardization organizations (including ISO) do not reject
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Technical standards that include intellectual property rights must be passed, and reasonable and non-discriminatory licenses can be made. Therefore, it musIt is necessary to further prove the causal connection between the two. This article believes that the factors that can be investigated are:
Whether there is another competitive technical solution, whether the intellectual property right is an unavoidable core technology for the standard, the
Standardization organization's intellectual property policies and procedures for the development of standards, etc. (2) Intentionally. Estoppel
Different, the anti-monopoly law defines the non-disclosure or false disclosure of the right holder as intentional in subjective elements. From
In theory, intellectual property owners should know without a doubt whether a certain technical solution includes
Obtain the technical content contained in the intellectual property rights. Therefore, the members who own the intellectual property rights will refuse
Non-disclosure behavior can directly infer its intentional subjective state. (3) Gain market power. Success will
The integration of your own intellectual property rights into technical standards does not necessarily mean that the right holder has the anti-monopoly law
Market power, these circumstances must also be considered: whether the technical standard is mandatory or advisory;
The exclusive standards in the industry still exist other compatible competitive standards; whether the intellectual property owner has the right to the licens
Excessively charged license fees or discriminatory practices, etc. After comprehensively reviewing the above requirements, the court or authority
It can be concluded whether the information disclosure behavior in a certain standard setting violates the anti-monopoly law, if the conclusion is affirmativ
, It can be determined that the exclusive attributes of the intellectual property rights should be restricted. In other words, the right holder should implement
Fee permits to regulate such attempts to monopolize.
6.2.3 Anti-monopoly legislation for intellectual property licensing of private technology standards organizations
6.2.3.1 Relevant regulations and practices in the United States, Europe and other countries and regions
At present, the anti-monopoly law for technology pools (ie, privatized standards organizations) as a technology standards organization
In terms of regulations, there are relatively few cases of separate legislation in various countries, and they are generally incorporated into the technology po
Based on the essential attributes of the standard, the technical consortium that is essentially a standard organization has special regulations. Therefore, this
The contents of the anti-monopoly laws and regulations in the first section of the chapter on technology pools can all be applied to technology standards or
The practice and relevant documents of relevant countries on the anti-monopoly regulations of technical standards organizations.
First, the recent commercial approval letter of the US Department of Justice on the 3G ① patent platform. Since 2002, Japan,
The anti-monopoly agencies of the United States and the European Union have successively reviewed the anti-monopoly law of 3G patent platforms and is
Sexual opinions. After reviewing the structure and content of the 3G patent platform, the U.S. Department of Justice has roughly the following opinions:
The patented platform arrangement will not prevent competition, and can also improve the comprehensive efficiency of using different 3G interface standa
The implementation of separate licenses by five independent platform companies has greatly reduced the possibility of serious anti-competitiveness.
In the identification of essential patents, the patent platform is operated by a public management company, and the degree of credibility of its necessity
To be guaranteed. The factors involved in the patent platform are not anti-competitive in nature, and the integration of the patent platform can still
Improve the effectiveness of the license. From the perspective of the types of licenses submitted, the platform can assist 5 3G standards-related mutual
① 3G is the abbreviation of 3rd Generation in English, which refers to the third generation of mobile communication technology. Compared with the first-generation analog mobile phone (1G) and the second-generation GSMDigital mobile phones (2G) such as TDMA and third-generation mobile phones generally refer to a new generation of mobile phones that combine wireless communication with multimedia communications such as the InterneMobile communication system. It can handle a variety of media formats such as images, music, and video streaming, and provides services including web browsing, teleconferences, and e-commerceAnd other information services.
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The use of complementary patents can reduce research and transaction costs and help manufacturers and service providers to obtain this
These standards are used to provide consumers with 3G products and services.
Second, the European Union. In 2004, "Guidelines on Technology Transfer Agreements" (Guidelines for 2004/C101/02)
Regarding the technical standards organization, the guidelines point out that several companies have established technical joint ventures that are compatibl
And based on the joint venture technology, an industry standard has been established. Before or after the establishment of the industry standard, such enterp
Generally, they can freely negotiate and determine the license fee for a package of technologies, and each technology is included in the license fee
Share. This type of agreement is an inherent requirement for the establishment of standards or joint ventures, and cannot be regarded as restricting competi
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Disputes, and in some cases, may also lead to more efficient results. In some cases, if you selectBefore the standard, rather than after the standard is determined, reaching an agreement on the license fee can more effectively avoid the choice of
Selected standards bring great market power to one or more necessary technologies. In addition, the licensee must still
It is free to determine the price of the products produced under the license. If it is an independent expert to choose which technology
Technology should be included in the joint venture, which can promote further competition between various existing technology methods. If joint venture
Has a dominant position in the market, the licensing fees and other licensing conditions should be fair and non-discriminatory.
Should be non-exclusive. It is necessary to ensure the openness of the joint operation and not cause exclusion and other anti-competitive effects on the dow
As a result, these requirements are necessary. In addition, in the anti-monopoly review of the 3G patent platform, the EU has
In addition to similar opinions from China, it also pointed out that due to the holders of some major 3G platform core technologies (such as Ericsson,
Nokia, etc.) have not joined the platform. If these companies continue not to join the platform, then the European Commission
The committee determined that the 3G platform will not hinder the growth of the new standard.
Third, the relevant regulations of Japan. The Japan Fair Trade Commission has issued two relevant guidelines
The specific guidelines for the application of the anti-monopoly law to harmonization standards are explained. Among them, the
In the jointly developed guidelines on the prohibition of monopoly law, the Fair Trade Commission’s standard for refusal to participate and form
The application of the anti-monopoly law to the related joint development and research activities was explained.
In the same development research (the total market share of participants is very high, and the research and development content, etc., look at the research
The results are highly correlated with the de facto standards in the business field), a certain business person was refused to participate,
It restricts its ability to obtain relevant results, and it is difficult to find other means to make its business alive.
When it is in trouble and may be excluded from the market, it will constitute a problem in the prohibition of monopoly law.” Fair Trading
In the “Guidelines on the Prohibition of Monopoly Law Concerning the Activities of Business Enterprise Groups” issued by the Committee in 1995,
It clarified whether the standards set by business organizations caused problems in the anti-monopoly law. According to the prohibition of ridges in Japan
According to the provisions of Article 8 of the law, the "restrictions on the types, quality, and specifications of products" implemented by private organizati
When it belongs to "substantial restriction of competition" or "unfair transaction", it will constitute a violation of the anti-monopoly law. but
Yes, for the industry’s specifications and standards, it must be determined based on the “principle of reason”
Whether the restrictive behavior imposed is reasonable. At this point, the guidelines believe that: this regulation must be reviewed "yes
Whether it belongs to the reasonable and necessary scope based on the needs of the public interest of the society, etc., to determine whether it has
It is illegal to restrict competition. The guidelines also believe that: in general, "settings are related to the
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“In principle, it is not illegal in principle.” It can be seen that Japan’s
The guidelines take into account that there is a certain degree of rationality in the coordination and restriction of implementation for setting standards. How
There are no restrictions on the use of standards by members in the process of standard formation or in the regulations of the standard-setting body
Competitive behavior, but once the industry standard is formed, it is difficult for products that do not comply with the standard to enter the market. to this e
All companies in the industry have to "voluntarily" adopt existing standards to engage in production and business activities. therefore,
It is necessary to comprehensively review whether there has been an improper exclusion of new technical specifications in the process of setting standards.
In addition, on July 25, 2001, the Japan Fair Trade Commission issued a special issue on the anti-competitive issue of technical standards.
Table of the "Research Report on the Competition Policy of Technical Standards", and from the formation process and formation of technical standards
Two aspects of the latter performance are explained. Among them, the anti-competitive issues in the formation process mainly include:
Restrictions of the adder; ②The adoption of technical standards is procedurally fair, but in obtaining “de facto standards”
There are anti-competitive issues in the process; ③Improper use of network effects. After the standard is formed, it may be
The main anti-competitive problems that have arisen are: ①Refusing to issue corresponding patented technology licenses; ②Excluding rival technologies
Technology, hinder the development and popularization of new technologies; ③sold together with auxiliary products or add exclusive conditions;
④ Do not disclose the technical interface; and ⑤ conceal the technology that has obtained the
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The act of exercising rights later may also pose a problem. Because these behaviors are related to the technical standards in the industry
Together, therefore, its development is very likely to form a monopoly on the corresponding industry. [210]
In 2005, Japan issued the "Guidelines for Standardization and Patent Pool Agreements". The main contents of the guidelines are:
First, regarding standardization and patent pool market power standards: 20% market share or four or more
The existence of other similar standards makes the standards considered to be non-dominant; secondly, the time limit for the licensing of standards may be
Anti-monopoly regulations that restrict competition in the relevant market or acts that hinder competition, such as price restrictions, output restrictions,
Grant-back, non-questioning clauses, etc.; third, anti-monopoly regulations for enterprises' attempting to monopolize in the process of standardization
System, such as making patented technologies become standards through various activities; fourth, the standards must be specialized
Interest issues, and the possible anti-competitive effects of non-essential patents; fifth, patent pools or technical standards organizations
The management of information, the blocking of information, etc. may cause problems with anti-competitive effects. The guide also appends 9 related assu
Cases to illustrate relevant facts and legal analysis. In general, the guide pays more attention to the development of standards and patent pools.
Indulgence and fairness.
6.2.3.2 my country's recommendations on anti-monopoly legislation for technical standards organizations
As a kind of property right system, intellectual property rights are produced in response to the requirements of science and technology and economic
It must be compatible with a certain level of economic development. Since the 1990s, my country has vigorously strengthened the knowledge
The legislative and practical work in the protection of intellectual property rights. At the same time, my country has been well-known in the international e
Intellectual property rights, especially intellectual property rights in the form of technical standards
In addition to the objective reasons for the gap between my country’s technological development level and developed countries, this situation has been cau
It should be attributed to the lack of a system of anti-monopoly laws and regulations on intellectual property rights.
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This article believes that in the use of technical standards, it can actually be divided into two levels: the need for technology
And the need for standards. However, when intellectual property rights are combined with technical standards, the need for technology and benchmarking
The requirements of standards are all regarded as the requirements of technology, which will inevitably greatly strengthen the statutory monopoly of intelle
It can even be said that the statutory monopoly of intellectual property has become a market monopoly. Therefore, under standardized conditions
The government should weaken the protection of intellectual property rights in order to achieve the efficiency goals of the current intellectual property prot
Intellectual property protection in the industry has a significant market strategic tool significance, and manufacturers can obtain innovation from their leadi
Incentives and relaxation of intellectual property rights may not have a negative effect on innovation.
Specifically, when measuring the anti-competitiveness of technology pools as a de facto standard, it is not only possible to restrict
Angle-competitive agreements to regulate ① , also from the perspective of the abuse of a dominant position, in particular the following aspects:
First, whether the technical standards are open. After the technology pool has become the de facto standard in the industry, the
The openness of the camp has become a key factor in judging whether it is anti-competitive. Because if the joint venture is only for members
Permission, the non-member competitors cannot enter the product or technology market because they cannot obtain the license.
Market, thus greatly reducing the competitiveness of the product or technology market (at least before the standard is replaced, that is,
Before the so-called innovative destruction), there will be only competition between members in the market, and there will be no competition between mem
The competition between members, if the members use technology joint ventures to fix prices, divide markets, etc., it will be complete.
All eliminate competition in the product or technology market.
Second, whether the technical standards are fair and non-discriminatory when licensing externally. When the technology consortium is established
When the technology has become a technical standard, the fairness and non-discrimination of external licenses directly affect the use of the technology
A level playing field in the downstream product market for production. According to the EU "Guidelines on Technology Transfer Agreements"
(Guidelines for 2004/C101/02) Article 226: Different licensing fees are generally applicable to different product markets.
It is not regarded as restricting competition, but within the product market, license fees should not be differentiated. Especially for licensed
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The treatment of persons should not be differentiated because the latter is a licensor or not a licensor. Therefore, the committee will consider
Does the licensor also have the obligation to pay the license fee? At this point, the EU's regulations are more stringent. exist
In many current technical standard joint ventures, members and non-members are differentiated in obtaining joint venture licenses.
Thirdly, does the technology pool use its advantageous position as a technology standard to carry out tying and prohibition effects?
Abuse of market dominance, such as questioning and requesting exclusive feedback from the licensee. And has not become an industry technology
Compared with the technical joint operation of the technical standard, the tying and prohibition of the technical standard joint
Restrictive clauses such as these will receive special attention from the anti-monopoly law, because as an industry standard, technical standards
This industry has a pivotal position, and its abuse must be strictly monitored.
Fourth, whether technical standards are not conducive to the generation and growth of similar standards, and whether they do not support different sta
Compatibility between. Technical standards and standardization have brought great efficiency to our lives and production, but standards
Changes will also infringe consumers’ right to choose. More importantly, any technical standard has its life cycle.
When some technical standards and licensing environment are not conducive to the growth of new standards, the entire industry may be limited to existing
① For the specific content of the anti-competition agreement, please refer to the relevant content in Section 1 of this chapter, which will not be repeated here.
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The development is delayed or even stagnated. Therefore, it is necessary to emphasize the openness of technical standard joint operation and the inter-stand
Compatibility, such as the 3G platform, includes 5 different network mobile communication standards. In technology pooling,
Whether to allow the intellectual property owner to license technology alone is not only a consideration of the interests of the licensee, but also the same.
An important condition for the development of such standards, because the new standard is likely to include the basic patents in the original standard
technology.
When drawing a conclusion from the above perspective that a certain technical standard is harmful to competition or even completely eliminates com
It is stipulated that the technical standards organization constitutes an abuse and is responsible for the regulation of the anti-monopoly law, and the main reg
Prove the openness of technical standards and maintain a fair market competition environment.
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in conclusion
To a large extent, the value of intellectual property rights is realized through external licenses by right holders. If we say that intellectual property
The purpose of the intellectual property rights system is to encourage more and better creative and innovative activities, and intellectual property licensing
Innovation and creation are the inevitable means to truly transform into actual productivity. As human society enters the era of knowledge economy,
Technology has become an endogenous variable of economic growth, and intellectual property rights and their external licensing are important means to im
part. However, since intellectual property rights appear to be a statutory monopoly, and under certain conditions, this statutory
Monopoly power may be transformed into economic monopoly that the anti-monopoly law focuses on. Intellectual property owners have the right to
Ability to use the advantages brought by intellectual property rights to engage in restricting competition in the negotiation process of intellectual property l
Or through intellectual property licensing agreements to formulate anti-competitive clauses. These behaviors are not only possible
Cause damage to the licensee, and more importantly, lead to the destruction of the competitive order, efficiency and consumer welfare
Therefore, while protecting intellectual property rights and encouraging intellectual property licensing, how to regulate intellectual property rights
Licensing, creating an intellectual property licensing environment that does not harm competition, has become a concern in the legal field.
Since the intellectual property system and the anti-monopoly law share the objective values of innovation, efficiency, and competition,
The anti-monopoly laws and regulations for intellectual property licensing activities also use the above-mentioned basic categories as the measurement stan
As a legal department that adjusts the order of the market economy based on the public interest, protecting consumer welfare is its righteousness.
The embodiment of righteousness. Therefore, the anti-monopoly laws and regulations on the licensing of intellectual property rights should follow the follo
Licensing is harmful to competition, but it can achieve significant innovation efficiency and improve the overall welfare of society.
And these behaviors are indispensable to achieve these efficiencies. Among the various possible choices, it is important for consumer welfare.
The damage caused is the least, and under these premises, the permission should be allowed. (2) If a certain behavior
If the effect of the new efficiency is neutral or uncertain, it is judged whether it is allowed or not based on its impact on consumer welfare.
(3) In any case, the behavior cannot lead to permanent and comprehensive elimination of competition. The above analysis paradigm is for
The same applies to new economy industries.
Currently, the United States, the European Union, and Japan have tended to loosen their anti-monopoly regulations on intellectual property licensing.
Holding a position in favor of intellectual property rights is a change in the interests of these countries and regions, but
However, our country cannot copy these looser rules. From the perspective of economic development level, China is still a developing country
In terms of technology, it is also a technologically latecomer country. It is necessary to realize the economic and technical advantages of latecomer and imp
Comprehensive national strength, apart from independent innovation, technology introduction is the only way. From this point of view, intellectual property
It often means that Chinese enterprises act as technology importers and intellectual property rights holders in developed countries act as licensors.
Agreements were reached for authorized use, sales, etc. of each technology. Therefore, on the one hand, my country must
Strong protection to form a good domestic technology licensing environment and attract foreign advanced technology; on the other hand,
It is necessary to effectively regulate the behavior of intellectual property owners who abuse their rights to damage fair competition and monopolize the Ch
System, the primary goal of maintaining the openness of the market and fair competition should be maintained, through the protection of the competitive en
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The implementation of my country’s independent innovation strategy will enhance the country’s economic strength and competitiveness. In short, the stron
The stronger the anti-monopoly laws and regulations, the tighter the regulations can be implemented than in Europe and the United States. Based on the ab
In the specific anti-monopoly laws and regulations, the following legislative suggestions are put forward:
(1) Tying behavior in licensing: analysis by applying the principle of reasonableness, special attention should be paid to exclusion in the form of tying
The competition in related industries in my country, especially the domestic competition in the same industry.
(2) Refusal of permission: a strict stance should be adopted to effectively curb the use of intellectual property by multinational companies.
Power strategy to monopolize the market and obtain monopoly profits. In the anti-monopoly enforcement of the refusal of intellectual property rights, it sh
To maintain the openness of the market and fair competition as the direct goal, and to increase consumer welfare as the ultimate value
orientation. At the same time, corresponding anti-monopoly laws and regulations can be applied to different types of intellectual property rights.
(3) Price discrimination in licensing: First, the licensor has a dominant position; second, it is subjective
The intention to force competitors to withdraw from the competitive market through the implementation of differential prices; third, the behavior itself has
The possibility of competition or has caused substantial damage to competition. In the case of meeting the above conditions, should
As an abuse of a dominant position, it is prohibited by the anti-monopoly law and compensated for damages.
(4) No questioning clause: First, for patent license agreements, this behavior can be considered as its own violation.
Law; secondly, it should not be clearly stipulated that when the licensee questions the validity of the licensed technology, the licensor shall cancel
The validity of the terms of the contract; thirdly, the principle of legality shall be applied to the non-questioning clause of the proprietary technology.
(5) Grant-back clause: The principle of reasonableness should mainly be applied, supplemented by the principle of its own legality and its own illega
To analyze the rationality of specific grant-back clauses, we should first distinguish between exclusive grant-back and non-exclusive grant-back.
Analyze the market position of the licensor and the licensee.
(6) Exclusive license and geographical restrictions: First, when the licensor or licensee has market power, the
Occupation license is not allowed; second, when the parties to an intellectual property license agreement have a competitive relationship, two-way exclusiv
Licensing often severely restricts the competition between the two parties and is not allowed; third, other may or have already occurred
An agreement that seriously jeopardizes competition. In the analysis based on the last wording clause, the factors that can be considered are the network
Effects, cumulative effects, the validity period of the agreement, specific industrial policies and the parties’ motivations, etc.
(7) Production restriction clause: For the two-way production restriction and communication between the licensor and the licensee in a competitive re
Reaching the output restriction between the licensees through multiple parallel license agreements is deemed to be illegal in itself. Other output
The status quo clause shall be subject to reasonable analysis.
(8) Restrictions on the field of use: generally considered legal. However, the two-way asymmetrical
Exclusive use field restriction clauses and the exclusivity of the licensor or licensee with a dominant market position
The field of use often means hindering or even offsetting competition, and should be prohibited by antitrust laws.
(9) Price restriction: First, for products produced by the licensor and the licensee using patents or know-how
Or service limiting the first sale price should be analyzed for rationality; second, for resale price maintenance,
Determine that it is illegal; third, for collective management organizations such as copyright management organizations, patent and proprietary technology
Fixed price behavior, even if it constitutes a certain degree of price restriction between competitors, reasonable
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Principles of analysis.
(10) Technical pooling and technical standards: When technical standards are harmful to competition or even completely eliminate competition
In the conclusion, it should be stipulated that the technical standards organization constitutes an abuse and undertakes the regulation of the anti-monopoly l
The system should be to ensure the openness of technical standards and maintain a fair market competition environment.
The above are the legislative suggestions for the anti-monopoly laws and regulations of our country that mainly restrict competition among all kinds
The restrictive competition behaviors in the property rights licensing behaviors show the characteristics of diversification, network-like, and accumulation.
Comprehensive consideration is still needed for the application in the medium.
More importantly, each industry in the knowledge economy has its own characteristics in terms of technological innovation and competition.
Points and development laws, the further topic of anti-monopoly laws and regulations for intellectual property licensing should be the impact of various ind
Carrying out empirical analysis and research, so as to truly realize technological innovation, dynamic efficiency and consumer welfare
Promotion and maintenance.
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189
Thanks
Most colleagues who have experienced doctoral dissertation writing may feel the same: in the process of writing the dissertation, no
I have expected the ease and joy of the final pen setting only once, but when this moment really comes, I feel more
It was the unspeakable emotion brought by the review of this experience. The completion of the thesis means a period of research
The end of the research work, but at the same time it also opened up a broader research space, which is full of temptation, but also meaningful
Taste a more arduous journey.
As this article goes to the press, I sincerely thank all those who have helped me. Their sincerity and enthusiasm are mine.
The most valuable asset in your life experience. First of all, I would like to thank my tutor, Professor Li Buyun, Mr. rigorous
Academic attitude, generosity and benevolent character are the role models I have learned throughout my life, and are also my husband’s care and care,
Careful guidance and teaching led to the successful completion of the thesis. During the writing process, Professor Zheng Pengcheng and Xu Guangyao tau
Professor, Professor Li Siqi, and Professor Liu Shiping not only provided relevant information, but also did not hesitate to spend valuable research time on
The writing was discussed, and their guidance and inspiration laid the foundation for the writing of the thesis. Professor Wang Quanxing, Liu Dinghua
Professor and Professor Shi Bolin put forward pertinent opinions and suggestions during the thesis and writing process, Shi Yuying,
The encouragement and help from colleagues and friends such as Chen Guo, Qin Qiaolin and others have also benefited me a lot. I also express my gratitud
Thanks. When the writing of this paper is about to be completed, Professor Wang Xiaoye’s review and guidance will be included in the research work
A successful period ended.
Some people say that among the many memories, only the memory of overcoming difficulties is the sweetest. In this sense,
This experience should be the sweetest memory, because the hardships and difficulties in the writing process are not personal experience.
Can't feel it. But for me, this sweetness is accompanied by a bit of bitterness, which comes from neglecting my family
Because of the guilt brought by care and concern, especially my daughter and parents, it is their support that makes this article
The completion of the thesis became possible, and their peace and happiness is my biggest life issue.
Page 202
Appendix A (a list of academic papers published during the degree study)
[1] Li Buyun, Luo Jing. It is more reliable to practice legal system. Seeking Truth, 2004, 16:33-34
[2] Luo Jing. On the subject of legal choice. Seeking, 2007, 3:109-110
190
[3l Luo Jing. On the protection of consumer welfare in the anti-monopoly law. Consumer Economy, 2008, 1:80-83
[4] Luo Jing. On the copyright and related rights of Chinese newspapers and periodicals under the TRIPs agreement. Journal of Hunan University (Social S
Edition), 2007, 3:117-120
[5] Luo Jing. Theoretical Research on the Conflict of Intellectual Property Law and the Application of Law. Huxiang Forum, 2007, 3:92-94
[6] Luo Jing. Information disclosure behavior and legal regulation in the process of technical standard formulation-from the perspective of competition law
Theory and Practice of Finance and Economics, 2008, 5: 121-124