Research On The Anti-Monopoly Regulation Of Standard Essential Patents

Considering the huge influence of the combination between intellectual property rights and technical standards,acquiring Standard Essential Patent(hereinafter referred to as SEPs)is much more important than the dominance in product markets or regional markets.When patents are combined with essential technical standards,competitors must obtain patents in order to implement certain technical standards.After mixing with technical standards,patent transcend the limit of private rights and exert huge influences on public interests,and patent licensing becomes the prerequisite of implementing technical standards.The focus of anti-monopolistic administration and courts in different countries then become how to coordinate the conflict between the openness of technical standards and the private characteristic of patent,and how to constitute a fair and proper conflict coordination mechanism so as to promote the concurrent advancement of both private interest of patentee and interests of consumers and society as a whole?Characteristics of SEPs,such as effectiveness,irreplaceableness and complementarity,make it both beneficial and harmful to market competitions.For beneficial effects,SEPs can promote economic performance for competitors,and better protect consumer interests,and further stimulate technical progress and competition process.For harmful effects,SEPs may induce unfair competitions,and exert negative influence on consumer interests,even form technical barriers in international trade.Compared to normal patents,SEPs is more like a "double edge sword" for competition.Traditional principles,such as prohibiting rights abusing,interests balancing and weighing efficiency and fairness,can not settle the conflicts between the monopolistic feature of patents and public interests feature of SEPs,consequently it's necessary to employ anti-monopolistic theories to realize the effective regulation of SEPs,and this dissertation will discuss the anti-monopolistic regulation for SEPs from following 3 aspects:namely monopoly agreements,abusing of dominant market position and concentration of business operators.With regard to monopoly agreements,it's hard to clearly confirm whether to apply per se rule or rule of reason on SEPs monopoly agreements.Generally speaking,following factors should be taken into consideration when affirming the anti-competitive effects of SEPs.When patentees or patentees and licensors conclude agreements on fixing licensing fees,patented products' price,or limiting output or quantities of patented products,or separating markets related to selling or purchasing,if the effects of excluding or limiting competitions can not be proved,then those conducts should not be confirmed as monopoly agreements.At the same time,holders of SEPs can also quote exemption clause of Monopoly Law to maintain their legitimate competitive interests.However,the exemption institution of Monopoly Law is also related to the confirmation of "effects of excluding or limiting competition",which means it's necessary to conduct specific analysis on SEPs cases.As typical monopoly agreements,joint venture and joint boycott related to SEPs should also be analyzed from the aspects of conduct patterns,competitive effects etc.,but the legislation of China's Anti-Monopoly Law is too simple to provide feasible regulation,as a result it's necessary to draw useful lessons from anti-monopoly practices in US and EU countries with regard to specific regulatory standards.As for abusing of dominant market position,if certain SEPs product can only be made by applying certain patents with no alternative techniques available,then such SEPs can constitute a single technical market,and if certain SEPs product can be made by using other SEPs,then those SEPs constitute a common technical market.Although the presumption institution of market domination could simplify the application of Anti-Monopoly Law,however there are various factors in confirming dominant market position,and defining relative market is also quite complicated in SEPs.Then the question is that holders of SEPs usually occupy high market shares in relative product or technical market,should this fact be enough for presuming the existence of market domination?The answer is not if there are opposite proof indicating that effects of excluding or limiting competition doesn't exist.For example,although holders of SEPs usually hold market domination position,if holders of SEPs engage in conducts such as refusal to permission,tie-in or discriminated permission fees,these conducts alone can not be directly defined as abusing market domination positions without weighing the balance between competition efficiency and anti-competition effects.The implementation of "Provisions of the State Administration for Industry and Commerce on Prohibiting the Abuse of Intellectual Property Rights to Preclude or Restrict Competition 2015" and other more specific anti-monopoly administrative regulations,this conclusion will be further verified.With regard merger,the analysis focus is whether use structural measure or conduct measure to concentration related to SEPs.The major tool of structural measure is to strip assets so as to mitigate the anti-competitive effects of concentration;this method is effective especially when enterprises in horizontal mergers hold mutual replaceable patents,in this regard Anti-Monopoly Bureau of China's Commerce Ministry usually demand merger parties to certain intellectual property rights included in SEPs.Compared with the simplicity and closeness of structural measure,conduct measures have various patterns hard to be listed,the only way is to classify different patterns based on analyzing different measures from various countries.Transparency rule,Indiscrimination Rule,Firewall Rule,Anti Retaliation Rule,Terminating Excluding Agreements and Open Permission Rule can all be used to effectively mitigate the anti-competitive effects induced by SEPs in merger cases.Using anti-monopoly regulation system to deal with competition issues related to SEPs is not only a theoretical problem due to the specialty of SEPs,but also a response to realistic demands for anti-monopoly administration and judicial review with more and more cases springing up due to the increasing prevalence of SEPs.Anti-monopoly administrative agencies and courts have provided many useful analysis related to SEPs regulation in various cases,such as Microsoft v.Motorola,Motorola v.Apple,Apple v.Samsung,Huawei v.IDC,Qualcomm sanction etc..In western countries rules or guidelines formulated by anti-monopoly administrative agencies are major tools for regulating SEPs.Situations in China are much more complex,National Development and Reform Commission,Commerce Ministry and State Administration for Industry and Commerce should take joint efforts to formulate specific rules.The purpose of this series of rules formulation is to promote the positive effects of SEPs and curb its anti-competitive effects for market competition,which will become the new contribution of anti-monopoly law to standardized society.