The Legal Control On The Right Misuse Of International Patent Licensing Trade

As an important legal system, patent right symbolizes the progresses of human civilization and pushes the advancement of science and technology. However, due to its inborn trust nature, the emergence of conflicts between the constant patent misuse and antitrust claim is inevitable, consequently, how to appropriately use patent needs to be controled. With the development of knowledge economy and the establishment of the international protection of intellectual property, the developing countries are put in a very disadvantageous situation in the control of patent misuse in that within WTO framework, the international protection of intellectual property is to developed countries' advantage, which can be reflected on the fact that developed countries frequently misuse patent in the international patent licensing trade, as a result of which, the economic losses of the developing countries are great and therefore , hinders the development of science and technology of those developing countries. China, as one of the developing countries, is undoubtedly faced with such a situation, therefore, how to legally control right misuse in patent licensing contract is extremely important.In this thesis, the author will systematically explain the theories related to the patent misuse and also some relevant legal control and will also illustrate the instances of how patent is misused in patent licensing trade based on different approaches, namely, literature analysis, comparative study and theory analysis. Moreover, the author will also introduce and define the patent misuse, its concept, its essence, connotations and its possible elements on the basis of a thorough analysis of its nature and also of the standard used to evaluate the degree of misuse. This thesis also features the overall analysis of two attributes of patent system: value appeal and its private attribute and of the discussion on how to balance 4 interest relationships and most important of all, provides insight theoretically into the control of patent misuse. Besides, the author also puts forward ways to control the patent misuse from 2 perspectives: the rule of civil law and antitrust law. On one hand, the author elaborates on how to impose the 4 rules------the Rule of Forbidding the Rights Misuse, the Rule of Honesty and Credit, theRule of Public Order and Good Customs, the Rule of Contract Freedom on the control of the patent misuse. On the other hand, the author also introduces the legal practices adopted by the United States, the European Union, Japan and TRIPs Protocol to cope with the Restrictive Clauses in International Licensing Agreement, analyses the antitrustrules of analysis------the Rule of Reason and the Rule of Perse Illegal, thus putsforward the Extraterritorial Application of Antitrust Law.In this thesis, the author endeavors to define the essence and the scope of the patent misuse, on the basis of which, gives suggestions on how to perfect and apply the rule of forbidding the misuse of rights and patent rights in Civil Code. Meanwhile, the author also advises how to construct a complete intellectual property license and antitrust legislation in China to ensure the valid control and to provide guidance legally to help domestic enterprises out of trouble in patent licensing trade.