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专利持有人会在许可协议中加入不主张权利条款以保证其权利不受到被许可方的挑战,然而各国法律对于不主张权利条款的合法性一直存在争议,比如是否应作为抑制竞争的限制性条款从而判定其无效。虽然各国的法律对不主张权利条款的立法仍存在差异,但也有共同的地方,即各国以完善的反垄断为背景,专门制定相关指南或法律条款,以“合理性原则”并综合其他因素进行判断。本文主要讨论不主张权利条款竞争性,首先分析不主张条款的概念及形成原因,其次讨论不主张条款的竞争效应,通过对其竞争效应的分析解释具体案例的裁决。
Patent holders will add to the license agreement not to assert their rights clause to ensure that their rights are not challenged by the licensee. However, the laws of various countries have been controversial about the validity of the non-claim of rights, such as whether it should be used as a restrictive measure to curb competition Terms to determine its invalid. Although the laws of various countries still differ from the legislation that does not advocate the provisions of the rights, there are common ground that all countries, with the perfect antitrust as the background, devise relevant guides or legal provisions specifically to “principle of rationality” and other Factors to judge. This article mainly discusses the non-assertion of competitive clauses of rights. Firstly, it analyzes the concept and causes of formation of non-assertive clauses. Second, it discusses the competitive effect of non-assertive clauses, and explains the specific cases through the analysis of its competitive effects.