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Legal Regulation Research On Issues Arising From Patent Standardization In International Trade

Posted on:2013-02-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:J LiFull Text:PDF
GTID:1116330374474337Subject:International law
Abstract/Summary:PDF Full Text Request
Technical standard is the manifestation of best order in industrial production, andthe common language of product exchange. Against the backlash of economicglobalization, global division of labor makes technical standard, functioning as theconnecting point of product information, a key to world trade. Since the1990's, thebooming ICT industry brought harsh challenges to technical standard as well asinternational trade, under which compatibility standard has become the prerequisite ofICT industry to fulfill the requirement of product interoperability. Compatibilitystandard is always set before the standard compliant product, with powerful networkexternality in economic effect, nevertheless, the accumulative innovation under ICTindustry results in accumulation of patents,"patent thicker"comes into being. Againstthe background of knowledge economy, patent, right of proprietary nature, isincorporated into technical standard, which has quasi-public goods nature, patentstandardization is inevitable. Patent standardization makes it possible for a patentee tocontrol the industry chain from the upstream, the game of interest among patentee,licensee and consumers is made fiercer through the platform of international trade.This can get supportive evidence from the patent war throughout the world, thetension between technology exporting country and technology importing country, theaggravation of conflicts between the self-innovation strategy in the technologyless-developed country and the obligation of complying the existing international standard under WTO/TBT.The key to solve the problems arising from patent standardization is balancingthe interests among the patentee whose patents are adopted in standards, standardlicensees and consumers. With regard to this, it is necessary to prevent a patenteefrom abusing his rights, and make reasonable restrictions on the patentee in thestandard setting and implementing process. Based on the logic, the thesis makes adeep and full-swing research into the problems arising from patent standardizationfrom the angle of international and domestic law, public and private law, contract,patent and anti-monopoly law. On the basis of study of large amount of casesconcerning patent standardization, borrowing the basic concept and method ofreasoning from economics, this thesis summarizes the common points of cases andprovides possible solution to the problems.This thesis is composed of three parts, the introduction, the text and theconclusion, which include six chapters. The brief contents of each chapter are asfollows.Chapter Ⅰ,"An Overview of the Basic Theory of Technical Standard and theRelated International Legal System", introduces the definition, history andclassification of technical standard, explores the nature of technical standard,furthermore, focuses on the research into the legal system under WTO/TBT. The mainpoints are as following: Firstly, technical standards, in particular the compatibilitystandard and variety reduction standard, have network externalities in economy andmay result in technology lock-in. Secondly, in view of the quasi-public goods natureof technical standard, the government has the obligation to provide appropriate supply.Thirdly, WTO/TBT is the only international treaty regulating the interface ofinternational trade and technical standard, the six rules in international standardsetting issued by the CTBT in2000, that are transparency, openness, impartiality,consensus, effectiveness and relevance, have been regarded as the basic rules ininternational standard setting.Chapter Ⅱ,"Patent and the Legal Issues Arising from Patent Standardization",leads to the topic of the thesis. The chapter makes an introduction to the definition and history of patent, indicating patent is proprietary right, then analyzes the causes andmeaning of patent standardization, illustrating two related issues concerned, patentpool and essential patent. Furthermore it summarizes the legal issues arising frompatent standardization. The main points are as following: Firstly, the rule that patent isprivate property has been established under WTO/TRIPS; Secondly, in context ofknowledge economy, patent standardization has become the trend of industrialdevelopment in the knowledge accumulating industry, which is represented by ICTindustry."Patent standardization and standard licensing" has become the developmentmodel pursued by the ICT industry, standardization is now the core of industrial andnational strategic development; Thirdly, technical standards are always accompaniedwith patent pool, which can avoid royalties stacking, reduce the transaction cost,improve economic efficiency and promote social welfare. However, it may restrictcompetition process under certain situations. Fourthly, accession of essential patentsinto the technical standard is the vital measure to prevent patent holder fromrestricting competition, and the technical elements are the core elements in theessential patent identification.The Chapter Ⅲ,"Discussion on Patent Standards Issues in the Context ofInternational Legal System", consists of two parts, discussion on patentstandardization issues under WTO/TBT and WTO/TRIPS respectively. The thesisstarts from the WAPI case, making a general introduction of the origin and latestdevelopment of the WAPI case, and the related discussion under WTO/TBT. Based onthe introduction, the thesis points out that patent standardization is the cause of theWAPI case. Furthermore, it argues that there is legislative vacancy under WTO/TBTin coordinating patent standardization and the Member's obligation of compliancewith the existing international technical standard under WTO/TBT. In view of theobject pursed by WTO/TBT and the international status of WTO/TBT in regulatingpreparation, application and adoption of standards, the thesis suggests that the patentpolicy of Ex Ante Disclosure of essential patent information and FRAND license,which have be accepted by most standard setting organizations (SSOs) be introducedto WTO/TBT in the form of CTBT Decision as "the seventh rule" of international standard setting, and recommends ADR under WIPO as the alternative disputesettlement mechanism to settle the disputes arising from standard setting. At the sametime, information exchange mechanism concerning patent standardization underWIPO and WTO should be established to clarify the ambiguity area in the patentpolicy of SSOs. The second section focuses on the international legislation concerninganti-competitive practice in patent licensing, analyzes the specific patent-antitrustprovisions under WTO/TRIPS, such as Article7, Article8, Article31, and Article40,arguing that with the purpose of trade related IPR protection, TRIPS dose too little tocoordinate patent-antitrust policy. The patent antitrust provisions under TRIPS are notsystemized, and do not touch the core issue of competition policy enforcement.Finally, it concludes that the prospect of international cooperation of patent antitrustpolicy is not optimistic based on the enforcement features of competition law and theantagonistic attitude of the U.S.. Patent antitrust is now mainly within the domesticjurisdiction.Chapter Ⅳ,"Remedies under Private Law to Legal Issues Arising from PatentStandardization", discusses the possible private law remedies to the legal issuesarising from patent standardization from the angle of contract law and patent law. Thefirst section analyzes the legal nature of Ex Ante FRAND license in SSO patent policy,introduces the latest development of patent policies of SSOs, furthermore, concludesthat more specific, clearer, more enforceable patent policy of SSOs is the effectivemethod to prevent patent hold-up. The second section discusses four equitabledoctrines frequently applied as defense in patent infringement litigation involvingpatent standardization, i.e. lache, waiver, estoppel and fraud. This thesis argues thatthe above said equitable defenses are of the nature of flexibility, however, flaw inmore strict burden of proof and high litigation expenses. It finally addresses patentmisuse defense in the U.S., arguing that double test rule, patent leverage rule andantitrust rule, have been established under the U.S. judicial practice in reviewingpatent misuse cases. However, the latest case shows that the U.S court has adopted aharsher attitude to patent misuse defense in patent standardization related cases.Chapter V,"Legal Issues in Regulating Patent Standardization with Public Law—— Antimonopoly Law", starts from the analysis of the necessity to regulate patentstandardization with antimonopoly law, arguing that the consistent target of patent,technical standard and antimonopoly law, and the flexibility of antimonopoly lawenforcement rules make antimonopoly a more suitable legal area in dealing with thelegal issues arising from patent standardization. The thesis father analyzes the latestlegal reform of antimonopoly enforcement in the U.S. and EU against the backgroundof new economy, arguing that innovation protection has become one of the key aimsof antimonopoly enforcement. The rule that patent should be treated as other tangibleproperty has been established, and rule of reason should be applied first in patentantimonopoly enforcement. Finally, it discusses the anti-competition practice underthe standard setting process and implementing process, arguing that antimonopoly lawshould be more tolerant to ex ante royalty rate negotiation. The EU competitionauthority is stricter with anti-competition practices, such as refusal to license, tie-in,excessive pricing and price discrimination than its American counterpart Furthermore,the essential facility doctrine maybe a suitable remedy for the legal issues arisingfrom patent standardization.Chapter Ⅵ,"Patent Standardization and China's Patent Standard RelatedLegislative Adjustment and Improvement", combining with the status quo ofeconomic, technological development and the legislation, analyzes the disadvantagesand the chances China is facing in the patent standardization time. The thesis arguesthat China should make full use of the flexibility provisions of WTO rules, strengthenthe R&D investment, increase the government procurement of self owed IPR standardcompliant products, develop Chinese standard strategy, adopt effective competitionpolicy to regulate the anti-competition practices of patentees, who maintain theirdominant market power through technical standards. Finally, the thesis puts forwardsuggestions for the improvement of standardization management law, the patent lawand the draft of IP related antimonopoly guidelines.
Keywords/Search Tags:Patent, Standardization, International Trade, Antimonopoly Law
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