A Study On The Anti-monopoly Law Regulation In Right Grant-back Clauses Of Patent License Agreement

With the rapid development of knowledge economy,the intellectual property transactions between enterprises are becoming more and more frequent.In order to maximize the benefits based on technology transfer,patent licensing agreements are usually used in intellectual property transactions and technology transfer.However,unlike other private rights,intellectual property,as a private right of the holder,is able to monopolize in specific areas according to the law.So in order to get more surplus value,when signing patent license agreement with the licensee,the holder can add grant-back clauses in the agreement,so that the holder can enjoy the rights of owner and use in the future technology improvement.The grant-back clauses can protect the patent holder from being excluded by the marketto a certain extent and avoid the loss of benefits after the technology transfer.However,the grant-back clauses also provide agreement support for the market monopoly of the patent holder based on its own intellectual property,which is not good for the construction and maintenance of a fair and free market competition environment.Therefore,it is necessary to make rules and regulations on the grant-back clauses in the patent license agreement according to the anti-monopoly law,which can protect the market benefits of the patent holder after the technology transfer and avoid the market monopoly behavior based on the grant-back clause.Therefore,this article firstly summarizes and analyses the grant-back clauses from four perspectives: the concept of patent license agreement;the definition and classification of grant-back clauses;the problems of the grant-back clauses and the advantages and disadvantages in market.Secondly,it analyzes China’s Civil Code,Foreign Trade Law,Anti-monopoly Law and other relevant laws and regulations,and shows the defects of China’s regulation of anti-monopoly law on grant-back clauses.Thirdly,collecting the legislative practice of anti-monopoly regulation in TRIPS agreement and foreign countries such as the United States,Europe and Japan,this article compares and analyses these data,which hopes to provide reference for China’s anti-monopoly regulation on the grant-back clauses.Finally,it comes to a conclusion that the relative market of grant-back clauses should be analysed from technology market and research market.The anti-monopoly regulation on the grant-back clauses can be analysed from the competitive relationship between the parties of the agreement,the domination position in the market of the holder,as well as the damage to related market competition.