Research On Tie-in Sale Problems Of International Intellectual Property Licensing

In English, Intellectual property refers to the exclusive right for the inventor tohis or her creative intellectual achievements. In essence, it is the legal monopoly rightto the intellectual products owned by their creators or inventors. In most cases, theright has its running scopes, in other words, its owner must use its right within thelaws instead of being above the laws. At the same time, the rules should grant theowner of intellectual property the legal protection in a limited period, but the rightshould not be abused. Tie-in sale behavior of the intellectual property rights licensingis a form of the holder’s abusing its intellectual property right.Firstly, this article introduces the general theory of international intellectualproperty licensing such as the concept of, the classification of and the essence oftie-in sale behavior. Then the author analyzes its standards and liability reasons. Inaddition, the writer states in detail the legal mechanism of intellectual propertylicensing behavior regulation in the United States and the European Union, arguesthat this mechanism will have a great significance on our country, and puts forwardseveral suggestions on regulating tie-in behavior of international intellectual propertyrights license in our country.The tied-in behavior in the international intellectual property license refers to thefact that in international intellectual property trade, the seller (usually thecounterparty) of developed countries make use of the priority over the intellectualproperty rights, and mainly by signing a license contract, forces the buyer to buy oneor certain kinds of goods they do not need in the purchase of one or more of thefollowing goods or services. In fact, these goods the buyer do not need includesordinary goods or knowledge, technology or services. What’s more, the sellers willattach some unreasonable conditions to the buyers that they can not buy the goods inneed from other sellers and they are able to enhance the technology in need.Compared with “Package”,“exclusive trading behavior”,“add gift trade” behaviorand “unilateral feedback behavior”, tied-in behavior has its typical characters and there are different kinds according to the different standards. The premise conditionthat tied-in behavior is beyond the rules depends on the priority of the related market,the independent market and the status of market main body. It does not mean thattied-in behavior in international intellectual property license must be against the lawsconcerned and get punished. In fact, some of these behaviors are aiming at the qualityand credit, some behaviors take the risk of the new products and others promotes thepublic welfare. Therefore, these above tied-in conducts will get exemption from thelaws.“The Multilateral Agreements on Restrictive Trade Practices Fair Principlesand Rules”,“Technical Secrets, and Technology Transfer Contract RegistrationDemonstration Method” and “Trade-related Intellectual Property Agreements” allhave the relative regulations on the tied-in behaviors in international trades. Inaddition,“the clauses81and82of the European Union treaty”,“The Europeregulations on the240th/96”,“the Europe regulations on the772nd/2004”,“the81st guideline of Technology transfer agreement for the Europe treaty article”,“Sherman Act”,“Article5. of the federal trade commission act”, and “Licensing ofintellectual property antitrust guidelines” have the regulations concerned. By thevirtue of the fact that the United States and the member states of the European Unionare developed capitalist countries, and the fact that their economies and technologiesare in the advanced level in the world, their laws concerned will have great influenceon our country. On the issue of tied-in sale in international intellectual property, thereare different standards respectively between the developing countries and thedeveloped countries. To be exact, the former adopts “competitive standards”, thelatter implements “developing standards”. Due to the goal of socialist modernization,in order to prompt the technological innovation, our nation will carry out both of thetwo standards. There are some problems about the regulations of tied-in sale ofintellectual property in the present market competition law such as Legal basis,cognizance standard of the law, legal responsibility， the jurisdiction and reliefprograms. Taking these into account, the author argues that the anti-monopolylegislation should be strengthened in China and a preliminary system ofanti-monopoly law should be formed. The standards of free competition in legislationshould be adopted in a limited scope and the system design of the judicial and law enforcement should be done well. In identifying the violation of the law, the principleof rationality should be viewed as the main standard, and the identifying componentsshould be refined. We should strengthen the maneuverability of the responsibility andclearly make distinctions between law enforcement and judicial authority, so as tolower the cost of judicial case and gradually establish the judicial final settlementmechanism.