The Integration, Conflict And Coordination Of Standards And Patents

This dissertation takes standards and patents, which are two strategic factors for current national development, as the subject of the present study. From national strategy of implementation of standardization perspective, it takes the integration, conflict and coordination of the two factors as the major line, introduces the historical development of the integration of standards and patents, the confirmation and balance of various parties’ interests and comparatively analyzes systems at home and abroad and the current conflict coordination mechanisms, thus constructs a framework which is not only in coordination with our national situation and international conventions but also effective to handle the conflict of standards and patents on the basis of equality and efficiency. Furthermore, it proposes specific policy suggestions for how to substantially get involved in international standardization activities and face the challenge of global standards competition which is characteristic of globalization of patented standardization.In addition to introduction and conclusion sections, this dissertation consists of six chapters.The introduction section introduces the significance, the subject, the current status as well as research methods and innovation of the present study. It explains the significance of our national strategy of implementation of standardization and provokes questions and reflection on the delay of the issue of Strategic National Standardization Guidelines and relevant laws and regulations on fitting standard patent into standard behavior. Then it proposes the significance of the present study which takes the integration, conflict and coordination of technical standards and patent as the study subject. Through the analysis of the current status of research, it illustrates what is new in the study subject, the study perspective and the study methods concerning the present study.Chapter 1, The Integration of Standards and Patents, introduces the birth and the historical development of the standard and patent systems and how they integrated gradually as they developed. It is divided into four sections. Section 1 explains the definition of standards, pointing out the present study mainly focuses on standards in a narrow sense, that is, technical standards. It summarizes characteristics of three stages of the birth and development of standards, reviews how the standards developed from the accumulation of manufacture experience in ancient handicraft activities and gradually changed into a sharp weapon which greatly benefits the industrialization of scientific and technological innovations and makes more competitive in international competition. Then it points out that uniformity, normativeness, technology and universality are the natural properties of standards. Section 2 reviews how patent system developed from monopolized management privilege granted by a monarchy to a permissible exclusive civil right and at last turned into an important tool which promotes technological innovation. It is pointed out that monopolization, exclusiveness and privatization are essential attributes of the patent right. Section 3 introduces general situation of the integration of standards and patents at home and abroad, especially how China changed from blind obedience to conscious integration. Section 4 points out that the integration of standards and patents is inevitable in the age of knowledge and analyzes what subjective and objective factors have caused it. It indicates that the social and technological development makes the integration of standards and patents inevitable and the properties of standards and patents and their increasingly important roles in social and technological development have laid the foundation for the integration of the two. The implementation of standardization strategy in various countries promotes and accelerates the integration of the two, which has become a new trend and power for economic development of the world.Chapter 2, Conflicts Arising from the Integration of Standards and Patents, focuses on various kinds of conflicts arising from the integration of standards and patents. It consists of three sections. Based on the analysis of essential properties of standards and patents, Section 1 analyzes the conflicts after the integration of standards and patents due to their difference between public and private, between monopolization and uniformity and between different protection measures arise due to the confusion of the line between public power and private rights. Section 2, starting from the analysis of real cases, analyzes such interest conflicts as conflicts between public interests and private interests, conflicts between private interests and conflicts between national interests. Section 3, from the perspective of jurisprudence, analyzes various conflicts in the legal value after the integration of standards and patents. It emphasizes that efficiency is of great importance for China, which is still a backward country, to deal with the conflicts arising from the integration of standards and patents and accelerate the nation’s development. After a detailed analysis of various conflicts, it is proposed that the core of all the conflicts is the conflict between different interests. Therefore, it is especially important to make a balance between different interests in order to settle the problems relevant to the conflicts of standards and patents.Chapter 3, Principles for Conflict Coordinating Mechanism between Standards and Patents, points out that it is necessary to balance various interests when conflicts arises from the integration of standards and patents, and puts forward specific principles and methods for it. Three sections are included in this chapter. Section 1 gives the definition of interest-balancing, emphasizing that interest-balancing is a process of confirmation, selection and evaluation of interests, a legislative principle, a legally applicable principle as well as a relatively perfect legal state. Section 2 explains the necessity of balancing and coordinating interests in the conflicts and points out that interest-balancing is an effective means to legally coordinate interests and that it is the core value of patent system and standardization system and the inevitable need of conflict resolution. Section 3 proposes principles and means for balancing and coordinating interests in the conflicts. It is suggested that interest-balancing should be used as a method to give a justice evaluation of interest and show respect to legal capacity of each party in interest and their seeking for interest, thus a conflict coordination mechanism will be constructed. Such a mechanism gives priority to social interests, permits proper involvement of public power and accepts reasonable authority restriction as a main principle. It is a mechanism that possesses both stimulation and restriction functions.Chapter 4, The Model of Conflict Coordinating Mechanism between Standards and Patents, explains and analyzes the advantages and disadvantages of the current conflicts coordinating mechanisms abroad from the three level of before, during, and after the events. It is divided into 3 sections. Section 1 introduces the patent policy models in main standardization organizations in the world, points out that this model is the conflict coordinating mechanism in the internal standardization organizations. It is the base and the prerequisite to use the patents and anti-monopoly auditing models. The main content of the patent policy includes the principle of not refusing necessary patents, the principle of patent information disclosure, the principle to use the patent license, and the principle of not disturbing. Section 2 analyzes the patent license using models in the patent laws area, points out this model is to provide resolutions on using the patents related to the standards, analyzes the advantages and disadvantages of current licensing methods to coordinate the conflicts between standards and patents. Section 3 analyzes the detailed content of the anti-monopoly auditing models abroad, points out that this model is the main tool for the U.S. and developed European countries to deal with the misuse of the IPR after the integration of standards and patents, which is the relatively complex afterwards relief measure.Chapter 5, Constructing China’s Conflict Coordination Mechanisms between Standards and Patents, points out that the conflict coordinating mechanism is the resolution, and explains the detailed construction method of China’s conflict coordination mechanism. It is divided into three sections. Sections 1 introduces and analyzes China’s antitrust laws, standardization laws, patent laws and relevant laws and regulations concerning the issue of standard patent in judicial precedents, and then it is concluded that China lacks of conflict coordination mechanisms at present. Section 2 gives a detailed analysis of the deep reasons why China lacks of conflict coordination mechanisms and why it is so difficult to build up such mechanisms in China. It thoroughly analyzes the specializations and distinctions between China and international standards organizations and developed countries in standard property, standardization management systems and standard formation paths. It is proposed that the construction of conflict coordination mechanisms with Chinese characteristics is a great necessity and an urgent need. Section 3 starts from the priority of efficiency, interests balance and national situation, makes detailed suggestions to construct the conflict coordination mechanisms between patents and standards, which will set up patent information disclosure system, set up reasonable and fair patent license pricing coordination mechanism, and set up different coordinating mechanisms regarding the mandatory standards and voluntary standards.Charter 6, Implementing National Standardization Strategy, Actively Respond to the New Trend of Combination of Standards and Patent. Through comparatively analyzing national standardization strategy of developed countries, it proposes specific policy recommendations on actively participation of global standard competition, whose main characteristic is globalization of patent standard. There are three sections. Section 1 gives a brief introduction and comparative analyses of EU, USA, German and Japan standardization strategy, gets the conclusion that the core content of their National strategy is to achieve the standardization and internationalization of patent technology. Section 2, through the analysis of the important role and excellent influence of international standards, that under the condition of economic globalization, under the background of combination of standard and patent, the global standards competition between countries become more and more intensive, and shows the new features of global competition through the internationalization of patent standards. Section 3 proposes the specific suggestions on China’s implementation of standardization strategy and participation in global standard competition, considering national condition. The suggestions include to adjust the strategic objectives and strategies, to form and improve the coordination mechanism of conflict, to delop the working mechanism with government interaction, business initiative, and combination of science research, to play a more active and important role in strategic emerging filed and international rules, we should achieve better advantage in global standard competition.The conclusion part is the concluding section of the dissertation. It points out that the standardization, industrialization and internationalization of patent technology is the core target of national standardization strategy .To internally set up the conflict coordination mechanism is the important tool to achienve the strategic goal, and to actively participate in global competition is the key to meet the stragic goal. The mechanism for conflict coordination is the adjustment and optimization for the current legal system. We should start from the revision of the Standardization Law, and set up the patent information disclosure system, so as to make all the related parties could get the patent information fully, timely and comprehensively, and also to know the result of disobeying the obligations. Besides, we should develop more rules on developing and revising the standards, and set up different patent license coordination system about the mandatory and voluntary standards. To participate in global standards competition is to get more speaking right for developing and revising the international standards. We should focus on the active participation and key breakthroughs, to improve the related various policies and measures. We should also gather all the social strengths to fasten the standardization work in key areas, so as to get more opportunities in the global standards competition. We should also implement the stragetic goals of the national standardization work, and overlay improve the comprehensive strength of our national economic and social development.