A Reasearch On Anti-monopoly Regulation For Standard Essential Patents

Since the 21st century,with the advent of the era of economic globalization and knowledge economy,the competition between countries and enterprises is largely technical competition and innovation.In view of the field of electronic,information,especially wireless communications currently has achieved technology standardization,in this case,how can we adhere to the openness of technical standards under the condition of maintaining a reasonable income of the patentees,and to ensure that the licensee can obtain a fair,reasonable and non-discriminatory license of standard essential patents,has become a key issue among the technical competition and innovation.Therefore,antitrust regulation of standard essential patents has already become a hot and difficult issue in Competition law research.In this thesis,it is divided into five parts to discuss the issue.The first part is an overview of standard essential patents.This part expounds the meanings and characteristics of standards and technical standards,standardization and technical standardization,and determines the meaning and identified standards of standard essential patents.Since the standard essential patents are mainly set by the standard setting organizations,this part discusses the intellectual property policy of standard setting organizations,including the basic principle of equal treatment,information disclosure,encouraging license and not involved in the dispute,and focus on the information disclosure policy.The second part is anti-monopoly analysis of abusive conduct of standard essential patents.First of all,this thesis expounds the general method of relevant market definition,such as "demand substitution",“supply substitution" and "Small but Significant and Non-transitory Increase in Price".According to the characteristics of using the anti-monopoly law to regulate intellectual property,the relevant technology market should be considered as we define the standard essential patents license market.When we define the relevant market of standard essential patents,we should recognize the importance of relevant market definition involving standard essential patents,and consider the method and evidence of relevant market definition.Relevant market definition is the primary and indispensable step to affirm that whether the standard essential patents holders occupy the dominant position or not.Because the standard making eliminates the fundamental competition among various patents,the standard essential patents holders obtain the monopoly power in essential patents licensing market.However,except for market share,we need to further consider the market influence of standard itself,the competition among different standards and the dynamic development of related technology.When we analyze that whether the standard essential patents holders,occupying the market dominant position,engage in the abusive conduct or not,we should apply the "rule of reason"principle.The third part is the anti-monopoly regulation on royalties of standard essential patents.It analyses the positive significance by applying in anti-monopoly to regulate the royalties of standard essential patents,explains the principle of regulation on royalties by virtue of anti-monopoly,elaborates the rationality of contribution standard in evaluating royalties,and summarizes several methods to determine royalties,such as George Pacific 15 kinds of factor method,the Ex Ante benchmarking,gross price method,and baseball-style or final offer arbitration.Finally,the suggestions,on the aspect of anti-monopoly regulation on standard essential patents royalties,are put forward from the perspective of arbitration,the courts and administrative law enforcement.The fourth part is the anti-monopoly regulation on injunctive relief of standard essential patents.Firstly,the basic meaning of injunctive relief is fully elaborated,then search the legitimacy of standard essential patents holders seeking injunctive relief.Since the conduct of seeking injunctive relief by standard essential patents holders can be regarded as a new and special abusive conduct or rampant litigation conduct,the part analyzes the influence on the market competition which is cause by injunctive relief,indicates that the FRAND commitment cannot effectively regulate the abusive issue of injunctive relief,and point out the methods to establish and improve the china’s anti-monopoly regulation on standard essential patents injunctive relief strategies.To be specific,firstly,elaborating regulation theory which is to coordinate the relationship between the freedom of contract and state intervention;secondly,clearly putting forward regulation principle,namely the regulation should conform to the social and public interests;thirdly,improving regulation measures,that is,to establish the way by virtue of anti-monopoly law to regulate and analyze standard essential patents injunctive relief,the anti-monopoly law regulation analysis method,and the standards to define the "intentionally" of standard essential patents holders and "good faith" of standard essential patents implementers.The fifth part is the control of standard essential patents concentration of undertakings.This part discusses that the control of concentration shall adhere to some concept,namely economic concept,economic fairness,economic democracy and economic security,and compare some evaluation criteria,such as“Substantially Lessen Competition" in US,“Significant Impediment to Effective Competition" in EU and "Eliminate restrictions on competition effect" in China.Although the analysis of general cases can be used in standard essential patents concentration of undertakings,the market definition and competition evaluation in standard essential patents concentration have certain particularity.Behavioral relief generally preferred in structural relief.In addition,standard essential patents holders usually make a FRAND commitment to standard setting organization,therefore,they should be subject to FRAND commitment and cannot abuse injunctive relief.