Accordingly, the restrictive clauses have the following requirements:
1, which is limited to international technology trade, excluding commodity trade;
This clause is unreasonable. It aims to restrict market entry or excessively restrict competition by abusing or trying to abuse market dominance. Does not include reasonable competition.
This clause is prohibited by law, and restrictions can be set in international licensing contracts. There are no restrictions prohibited by law, which are not restrictive clauses;
4. This clause is generally a restriction imposed by the technology licensor on the technology transferee. It can be seen that restrictive clauses generally refer to illegal acts that the technology transferor imposes on the technology transferee in violation of the principle of fair competition in order to protect its competitive advantage and obtain high profits in international technology transfer contracts. Restrictive clauses are actually one-way restrictions on the rights of potential competitors by unreasonably abusing the dominant position of market forces under the pretext of protecting the exercise of legal rights such as patents and trademarks and aiming at obtaining high profits. As the object of international technology transfer, patents and proprietary technologies are characterized by a certain degree of exclusivity, but their exclusive rights are limited and cannot go beyond the scope stipulated by law. However, technology licensors often use their own technological advantages to set restrictive clauses, with the purpose of expanding their due rights, limiting the competitiveness of licensees, promoting the export of goods or outdated technologies, and recovering high R&D expenses.
1, restrictive clauses are legal monopoly based on patent rights or some exclusive rights of proprietary technology. Patent rights are protected by law and enjoy exclusive rights at a certain time and place; Proprietary technology enjoys de facto exclusive rights, while maintaining confidentiality. Restrictive clauses make use of statutory exclusive rights and expand the scope of exclusive rights, which not only limits the illegal infringement of exclusive rights, but also limits the legal use of patent rights, and even involves matters unrelated to patent rights.
2. Restrictive clauses are unilateral rights restrictions or constraints imposed by Licensor on Licensee, which constitute formal equality and de facto inequality of rights and obligations of both parties. Restrictive clause is the composition of the contract. Using the principle of autonomy of contract will and relying on the technical advantages of licensor, the bullying facts are covered up by superficial consensus. In the legislation of regulating restrictive clauses, developed countries mostly adopt general laws, while developing countries adopt targeted special technology transfer laws and regulations and set up special administrative agencies.
Most developed countries have not enacted special technology transfer laws, and the regulation function of restrictive clauses in international technology transfer is mainly completed by the anti-monopoly law called "economic constitution". Anti-monopoly law is mainly to stop the abuse of economic power caused by excessive concentration, and does not specifically regulate the trading behavior between technology trade. However, the anti-monopoly laws of all countries contain principles and general provisions to control restrictive business practices in commodity trade. As technology trade is a new trade form developed later, these principles and regulations are applicable to the field of technology trade with the basic characteristics of trade. A typical example is the American antitrust law, which mainly consists of three parts: Sherman Act of 1890, Clayton Act of 19 14, Federal Trade Commission Act of 19 14, and related cases. In addition, there is/kloc-0. Germany's 1957 anti-competitive restriction law and 1973 anti-unfair competition law; 1947 Japan promulgated the Law on Prohibiting Private Monopoly and Maintaining Fair Trade, and 1968 promulgated the Implementation Guide for the Application of Anti-monopoly Law to License Agreements. Their * * * feature is that they are mandatory laws that both parties to the transaction must abide by. The contract shall not contain the contents of restrictive business practices prescribed by law, and the court's jurisdiction over cases violating such laws shall not be excluded by agreement. Otherwise, the contract will not be approved or an injunction will be issued to declare the contract invalid, and the sanctions for violating this law are quite severe.
Most developing countries are technology importers. In the process of technology introduction, companies in developed countries often demand high patent fees by virtue of their own advantages, and impose a large number of dependent, unreasonable and unfair restrictive clauses on technology recipients in developing countries, which not only lose a lot of foreign exchange, but also introduce inappropriate technologies, causing losses to enterprises, causing environmental pollution and bringing adverse consequences to the economic development of the whole country. To this end, developing countries began to strengthen government intervention in the 1970s, mainly by formulating special laws and regulations on technology transfer and setting up special administrative agencies to register and approve technology transfer contracts, so as to control various restrictive clauses. For example, Mexico's 1972 Law on Technology Transfer Registration and Patent and Trademark Use; Philippine technology transfer regulations 1978. It is developing countries that have adopted targeted special laws to regulate restrictive clauses. Therefore, in terms of legislative skills, they often use enumeration methods to clarify each prohibitive clause, making the legal adjustment of restrictive clauses more firm and clear than that of developed countries. However, we should also see that special legislation involves many administrative procedures, complicated registration or approval procedures, and unclear related treatment. It is worth noting that with the economic development of developing countries, the legislative styles of some countries are also advancing with the times. For example, Mexico enacted an antitrust law to regulate technology trade. Developed countries take "competition" as the basic criterion for judging restrictive clauses, while developing countries take "development" as the criterion. The standard of "competition" is to judge whether a certain practice or contract terms in technology trade are restrictive terms, mainly depending on whether it affects or hinders the free competition order in the market transaction process; The standard of "development" is to see whether it is possible to form any dependence and control the production, technology and sales activities of the transferee's enterprises, thus affecting the economic independence and development of the transferee country. Therefore, although some practices may not directly affect the market or competition, they will be prohibited by law as long as they affect the national economic and technological development.
This difference stems from the different purposes of adjusting restrictive clauses in developed and developing countries. Developed countries are in a dominant position in technology and are generally technology exporters. They generally regard technology trade as a new trade form alongside commodity trade, which is regulated by the anti-monopoly law to maintain the free competition order in the market. While developing countries are generally in the position of technology importers, of course, more consideration is given to how to make better use of imported technology to promote their own economic development. The difference of the above-mentioned value orientation is reflected in the identification of specific restrictive business terms and the different evaluation rules. Developed countries adopt "self-rule" and "rational rule", typically the United States. On the other hand, developing countries give the competent authorities more discretion according to the basic standards conducive to development and the situations listed in their legislation.
The so-called "illegal rules" mean that some restrictive practices have obvious anti-competitive nature. Once this kind of behavior is found, it can be judged as illegal, and there is no need to produce evidence to prove that this practice is unreasonable or has a bad influence on the market. The so-called "reasonable rule" means that although some trade behaviors contain some restrictive conditions, as long as they are considered to be reasonable in business, they will not weaken or eliminate free competition in the market, which is not an act that violates the anti-monopoly law. The Supreme Court of the United States adopted this principle for the first time in the case of191New Jersey Mobil Oil Company, and made a distinction between "reasonable" and "unreasonable" when determining whether it was a restrictive act, but its uncertainty caused different understandings among judges in trial practice. After a long period of judicial practice, American courts have gradually formed the "rule of its own illegality", and the landmark case of establishing this rule is the "United States v. MacCarson & Robinson Co., Ltd." heard by Chief Justice Warren of the United States Supreme Court at 1956. According to this rule, if some acts in international technology transfer are obviously anti-competitive, such as tying up non-patented products or proprietary technology, restricting the research and development of the transferee, etc., they can be directly identified as illegal acts.