The Illegality Analysis of Extending the Subject-Matter for Royalties: Centering on Judicial Practices of U.S. Intellectual Property.

• Main Authors: Cheng, Huei-Ching, 鄭卉晴
• Other Authors: Wang, Li-Dar
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/26559232832739599659

碩士 === 國立交通大學 === 科技法律研究所 === 99 === Royalty Agreement which includes unpatented products or licensed but unused technologies, in essence, illegally extends the scope of intellectual property rights, and should be subject to patent misuse and antitrust regulations. Common subtypes of such unlawful expansion are mandatory package licenses and total-sales royalties. Under U.S. judicial decisions, mandatory package licenses and total-sales royalties apply to different case law, therefore, courts usually considered their illegality differently. However, due to their mutual characteristic of expanding royalty beyond the legal scope, there is inevitable need of constructing a unitary model to evaluate the validity of these acts. The author tried to set up a new set of considerations by extracting common elements of mandatory package licenses and total-sales royalties, which include “mutual convenience”, “freedom of operation”, and “anticompetitive effect of restrain competition and innovation”, then further conclude four key factors for judging the legality of extending royalty bases in the subject matter aspect. Through the lens of this new set of considerations and judging factors, there arises a clear discrepancy in the possibility and strength of being illegal between the two subtypes under competition law, which also explains the different results in U.S. judicial practices.