Research On Legal Issues Of Standard Essential Patent Injunctive Relief Misuse

Patents,as an important form of Intellectual Property(IP),from a static point of view,entitle the IP holders to technological monopoly within a certain protection term during which,the IP holders shall utilize their IPRs exclusively.Patents practically serve as an important vehicle for IPR holders to participate in market competition through implementation to obtain high profits,exclude competitors from entering market,or weaken competitors' market power.It has been a primary trend,that IPs conglomerate into Standards,and Standards transit into monopolization,which unveils a new era of the development of IPRs.“Power is conferred to be abused”,Standard Essential Patent(SEP)holders are no exceptions.SEP holders are intrinsically inclined to making the best out of their dominant market position by way of IP Hold-Up,excessive royalty rates,unfair terms and refusal to license,by which further advance of technology and competition are at great risk.The fusion of technology and standard is an inevitable consequence of socialized productions and technological advancements.Injunctive relief,as an effective remedy for IP holders that are experiencing or facing imminent threat of infringements,is an intrinsic legal entitlement of the IP holders.However,the emerge of IP misuse has been considered a result of the hardship of balancing legal rights and IP right restraints that traces its root back into the legal system,competition,and technology itself.With less restraint,an IP holder misuses its power through IP Hold-Ups and other antitrust activities,however,with more restraint,an IP holder's incentive to innovate or to participate in standards,that encourages IP implementers to engage in IP Hold-Outs.A balance between IP rights and legal restraints,which in a broader sense also reflects the balance between industrial policy and competition policy,has long been sought.This thesis focus on legal issues of SEP injunction misuse from three aspects,namely,policy restraints,antitrust enforcement practice and judicial practice.This thesis is composed of seven parts,of which the preface is the first part,the first to the fifth Chapters are the main contents,and the Conclusion is made in the last part.Chapter 0(Preface),as the introduction part,makes an entrance to this thesis by introducing the backgrounds of the topic,novelty,worldwide literatures,and methodology of this thesis.Chapter I explains fundamental theories of misuse of IP injunctive relief.First,the notions of “SEP”,“Injunctive Relief”,” Misuse of IP Rights” are illustrated and typical problems are illustrated.Second,an analysis is conducted on the origins of IP injunction misuse from the perspectives of legal system,technology,competition and the balance of interest.Last,current Chinese laws and regulations against IP injunction misuse are explained and are compared with actual status of practice to identify the difficulties faced by our system.Chapter II discusses on Standard-Settings Organizations(SSOs)SEP policy's restraints on SEP injunction misuse.An analysis of SSOs' IP Policy,Patent Information Disclosure and FRAND(Fair,Reasonable and Non-Discriminatory)principles in specific,is conducted,in which the legal connections among FRAND principle,FRAND commitments and FRAND licensing are defined.Second,the differences between the notions of FRAND commitments and the legal relationship between FRAND commitments and injunctive relief are examined,aiming to evaluate the impact on legitimacy of injunctive relief by various legal definitions of FRAND,through exploration on the logical connection among SSOs,SEP Holders and Implementers.Third,the FRAND analytical system's legal effect on the regulation of SEP injunctive relief misuse is discussed.Chapter III provides an analysis on the reasonableness of SEP injunctive relief.The first part analyzes the justiciability of SEP royalty dispute and the elements of royalties,the elements and analytic model adopted by the courts of law.The second part discusses the “e Bay”(U.S.),“Orange-Book-Standard”(Germany),Huawei v.ZTE(EU)and Huawei v.IDC(P.R.C)judicial determinations and the criteria underneath them to enlighten our domestic practices.Based on the aforesaid analysis and discussions,the third part further discusses,in the context of Chinese legal system,the grounds for a private antitrust proceeding,and factors and criteria considered by courts of law in determination of SEP misuse.Chapter IV focus on the SEP injunctive relief misuse in the context of the competition laws.First,through a thorough analysis on anti-competition practices of patent tying arrangements,discriminatory pricing,grand-back provision,non-compete restriction,cross-licensing,no challenge provision,patent term extension,a comparison is made against civil SEP injunctive relief misuse conducts.Second,the definitions of relevant market,dominant market power and misuse of market power,where an SEP injunction constitutes misuse of market power.Last,discussion is made on Merger control enforcement remedies,i.e.,behavioral,FRAND commitments and limits on injunctive relief motions in specific,are discussed in details.Chapter V introduces a coordinated 3-branch framework to regulate SEP injunctive relief misuse.First,within the scope of civil laws,legal essence of FRAND principle and civil cause of action is clarified,and an institutional response is proposed towards civil law restraints on in SEP Injunctive Relief proceedings.From the perspective of antitrust enforcement practice,this thesis focuses on the construction of rule set on SEP injunctive relief misuse issues,aiming to categorization of antitrust conducts,setting out decision-making process and refinement of the application of law.From a judicial point of view,this chapter focuses on the factors,that courts may consider in determining a SEP injunctive relief motion,or in civil antitrust proceedings,based on which,a judicial regulatory sub-framework is proposed based on the categorization of proceedings,the standardization of SEP injunctive relief application process,and the refinement of the judicial methods of royalty rates calculation.On the branch of coordinated regulatory structure,a coordinated regulation framework is proposed aiming to reaching the unification of judicial and enforcement standards,FRAND licensing and compulsory licensing,civil antitrust proceedings and antitrust enforcement practice.In Conclusion,this thesis reviews and summarizes the legal issues of SEP injunctive relief misuse based on the discussion of the 3-branch framework and the widespread legal regimes of civil,contract and antitrust laws,aiming to enlighten further research towards establishing a comprehensive,open and systematic regulating scheme.