A Study Of The Antitrust Problem About Patent And Technical Standard Fusion

With the rapid development of knowledge economy and the pushing of integrated process of global economy, "technology patent-patent standard--standard license", has become a new trend of international economy and trade in knowledge economy era. No matter which companies to master core patented technology, the companies will have the initiative in this area.The patent technology standards which is formulated or approved by the authorities are uniformly and harmoniously prescribed with some compulsory requirements or instructional functions in standard areas. Patented technology standard is a combinative product of patent and technical standard. The patent law belongs to private rights, while technology standard has public attribute, so the combination inevitably give rise to the conflict of interest. The legal monopoly position of patentee and powerful market ascendant of patented technology make some patentees motivated by self-interest to violate the prescription of current legislations, to abuse the patent rights, to hamper the formation and practice of patented technology standards, and to harm the other people' rights and public rights. The patent abuse mainly shows in the performance of non-disclosure of information patent in the procedure of making standards, the refusing of licensing patent, signing restrictive clauses and discriminatory licenses and so on. The America, Japan, and European Union respectively have formulated the patented technology standards and regulations of patent abuse, and for us the experience is worth using for reference. On the analysis of the present legislation of our country, to perfect the abuse of patent right in anti-monopoly legislation of patented technology standard shall combine with the overseas experiences in legislation and be based on the theory of balancing of rights of intellectual property law. Using the patent law to regulate relevant principles of the abuse of patent of patented technology standard and perfecting relevant legal systems of technology standards of the patent law are two aspects to balance the conflict of patented technology standard and the abuse of patent. Besides, the regulation of antimonopoly law can be studied by perfecting the anti-monopoly operation in intellectual property law area and explicating the specific content of the guidebook on anti-monopoly law of patented technology standards.