Research On Competitive Effect Of Patent Tying

Patent rights are a kind of "legal monopoly right",and the law grants exclusive rights to the right holder to stimulate inventions and encourage technological innovation.In judicial practice,the phenomenon of abuse of patent rights has emerged,especially the practice of patent tying.According to Article 20 of the Patent Law,if the patent tying has the effect of eliminating or restricting competition,it is subject to anti-monopoly regulations.However,judicial and enforcement cases in recent years have not made a specific analysis of the competitive effect of patent tying,and the Anti-Monopoly Guidelines in the Field of Intellectual Property Rights also have no concerns about the competitive effect and innovation effect of patent tying.As an area where intellectual property rights and anti-monopoly law intersect,patent tying should pay more attention to the effect of innovation,and achieve a balance between protecting the exercise of the rights of patentees,encouraging patentees to innovate and maintaining fair competition in the market.Therefore,the author will sort out and learn from the foreign analysis framework for the traditional competitive effect of patent tying,and consider the innovative effect of behavior,and propose a new type of competitive effect analysis framework.Patent tying has an anti-competitive effect from an economic perspective.First,it may result in competitive foreclosure in the tied product market and raise market entry barriers.Second,under the action of defensive leveraging,tie-in sellers will use tying to maintain or strengthen their monopoly position in the tying market.But patent tying may also promote competition,and tying should only be prohibited if it has a significant anti-competitive effect.Studies have shown that patent tying may have the function of implementing price discrimination or being an alternative to licensing fees,assisting with quality control,saving costs,and preventing double mark-ups.Patent tying is more closely linked to innovation than ordinary commodity tying.Innovation is an important factor in dynamic efficiency,and focusing on the innovative effects of behavior helps to build a market environment of free competition.The author suggests that the innovative effects of behavior be incorporated into the framework of competition analysis in the Anti-Monopoly Law.Patent tying can have an innovation-hindering effect.First,patent tying will cause the innovation foreclosure of the tied market,and as the level of competition in the tied market decreases,the innovation activities in the market will decrease,which in turn will lead to the innovation foreclosure effect of the tied market.Second,under the influence of defensive leveraging,it will also have an innovative obstruction effect on the tying products market.At the same time,patent tying also has an innovation incentive effect,one is to increase the return of innovators and stimulate innovation by achieving price discrimination;the other is to increase the motivation of enterprise research and development to stimulate innovation through risk sharing;the third is to promote product improvement or have new functions,so that patent tying may have innovative effects.In the legal and judicial practices of the U.S.and the EU,innovation factors have been included in the analysis of competition effects.It also proposes specific factors for examining the effect of competition analysis,which provides a reference for the analysis of the competitive effect of patent tying in China.In summary,when analyzing the process of distorting competition in patent tying,it is necessary to consider not only static efficiencies such as price,but also dynamic efficiencies,such as innovation effects.Based on this,the author proposes to apply the structural reason of rule to patent tying,and proposes an analytical framework that conforms to the characteristics of the competitive effect of patent tying.With regard to the requirements for competition analysis,the author suggests that innovation be included in the examination of competition effects,and that the corresponding factual elements that the original defendant should prove should be given from the aspects of anti-competitive effects and promotion effects.