| The twenty-first century is the time of knowledge economy when competitions are conducted based on technology and creation. And the continuous development of science and technology causes the society increasingly relies on them. And the society is making a better use of science and technology. The intellectual property and the licensing of intellectual property are of significant importance in market competition and social development with the creation, spread and use of knowledge. Especially in the turning point of market competition mode from competition of capital into that of knowledge and technology, many relevant matters such as intellectual property protection in the area licensing and limitation on practice of intellectual property rights, especially that of validity censoring of limiting terms involved in licensing, earn much concerns in all ranks of the society as well as legal community, licensing of intellectual property growing more and more complicated.Based on economic theories, since intellectual property in its nature is a legal limited monopoly, which has characteristics of property rights and can brings certain financial benefit in economic life, endowed to the obligee by law, an intellectual property obligee as an economic entity in market competition tends to protect his monopolized rights given by intellectual property law and even try to expand the original protection scope as well as strength through contract terms under Principles of Freedom to Contract. For example, an obligee might achieve the increase of licensing profits through Tying arrangement, price fixation, geographical zoon limitation in designing and arranging the terms of licensing fee.Yet, many terms alike established in licensing contract have to endue not only normal supervision of civil law and contract law but also that of other relevant laws and regulations such as Principle of Intellectual Property Right Abuse, Anti-Trust law and so on, separately or not. Since different principle or method has it own specific angel, aim or criteria to examine, to use Principle of Right Abuse or that of Market Dominant Position Abuse when confronting a case might turn out with a totally different conclusion. The establishment of Principal of Intellectual Property and Anti-Trust Law could be tracked back in United States, where the matter of validity censoring of limitation terms in licensing have experienced historic periods from control of Anti-Trust Law to regulation by Principle of Rights Abuse, to recent period of double control by both. The analysis by American judges towards these two censoring methods exhibit a clear clue how they have functioned in case of limitation terms in licensing. Given the above condition, this dissertation, beginning from the analysis of specific cases of U.S., aims to analyze and to conclude the two principles, Principle of Right Abuse & Principle of Market Dominant Position Abuse, in order to have an interactive understanding of the two methods. And the experience of U.S. using these two methods of censoring will be a reasonable reference when considering our country's current situation. |
