On The Anti-monopoly Regulation Of Patent Tying

In recent years,it is common that patentee ties up other commodities when granting patent licenses.Therefore,we need to clarify what kind of behavior constitutes patent tying,and what kind of patent tying violates antitrust laws.China’s antitrust law only makes some provisions for the tying of commodities.However,there is still no special consideration for patent tying.This thesis aims to discuss the antitrust regulation of patent tying,and research the analysis methods applicable to patent tying,so as to provide suggestions for legislative,judicial and law enforcement activities of patent tying.This thesis describes the unique characteristics of patent tying,that is,both the scope of tying products,the method of independent judgment,and the method of market position judgment are special.They lays the foundation for the proposed analysis method.A patent tying exists when the patentee grants a patent license to tying other commodities,and the patent is independent of other commodities.In order to obtain a general method of independent judgment,this thesis has summarized a comprehensive method with consumer demand as the core based on the commodity tying.Other factors such as market practices,functions,economic efficiency,and technology integration,are also considered.According to the principle of rationality,antitrust laws are violated only when patentees abuse market dominance to implement patent tying.The key is the definition of the relevant market.According to existing regulations,the definition includes the relevant technology market and the relevant project market with specific intellectual property rights.The definition of the relevant market proposed in this thesis includes only the relevant technology market.Based on the definition of the relevant market,whether the patentee has a dominant market position can be analyzed.When the patentee has a dominant market position,whether the patent tying has abused this dominant market position can be judged by analyzing the impact of patent tying on market competition and whether it has a valid reason.The relevant market of patent tying involves the relevant technology market and product market.This thesis argues that only the relevant technology is used for independent judgment.Then,analyze whether the patentee has a dominant market position in the relevant market.By analyzing the impact of patent tying on market competition and existence of valid reasons to determine whether patent tying has abused this dominant market position.Finally,based on the previous research results,some suggestions are made on the legislative,judicial and law enforcement activities of patent tying.The connotation of patent tying and establish the independent judgment method of patent tying should be legislatively clarified.The meaning of "substitutability" in the relevant technology market should also be clarified.The assertion doctrine is applicable for judging the market status of standard essential patents.In addition,two cases of justification is supplemented,which is applied through the understated provisions of Article 18 of the Interim Provisions on Prohibition of Abuse of Dominance in the Market.