The Anti-Monopoly Law Regulation Of The Grant-back Clause Of Intellectual Property

Intellectual property is a kind of private right, and which is different from other right is that it has a legal monopoly endowed by law. Although it has the function to promote technical innovation, encourage market competition and so on, the right holder as a rational economic man are likely to implement rights beyond the law limits in order to obtain greater economic benefits. The grant-back clause set in the intellectual property license agreement, which require the licensee must grant-back the improvement or innovation of the original technology to the license in the future, and it both has a positive and a negative effect on market competition. The existence of the restrictive clauses will make free and fair competition order been disrupted, customers' interest will been damaged and technology advancement will been blocked and the market competition and the social public interests will been seriously harmed. Therefore this paper mainly makes the grant-back clause which has a negative effect on the market competition as the research object, and to make that whether it belongs to the abuse of intellectual property right, how to judge it and how to apply anti-monopoly law to regulate it effectively as the starting point. And meanwhile, this paper is based on the theory of the unity of opposites and the coordination of intellectual property and anti-monopoly law, analysis and research on the causes of the grant-back clause, the advantages and disadvantages effect on market competition, the relationship between the grant-back clause and the abuse of intellectual property, the necessity and principles of analysis of the anti-monopoly law regulating the grant-back clause and the specific accreditation procedures of the grant-back clause constituting monopoly or impeding market competition. Although antimonopoly law has promulgated the implementation, still lack of the systematic anti-monopoly regulations of the abuse of intellectual property rights, such as the grant-back clause constituting monopoly or impeding market competition. Based on this, this paper combine the situation of our country and draw lessons from advanced systems and concepts of foreign country in regulating the grant-back clause of intellectual property license. In order to explore how to construct and improve the regulation system of anti-monopoly law of the grant-back clause of our country, so as to provide reference for practice.