On The Standardization Of The Patent Technology And The Legal Regulation On It

The technical standard is essentially a kind of public source, which is initially designed to solve the question of general utilization and compatibility during products from different manufacturers, having a very powerful nature of public welfare. The reason that a patent forged into a technical standard is the fast development of the technology and the daily increasing IP protection consciousness. The forging of patens and technical standards is a rapier: in one hand, the patent technology will be extremely publication vie the enforcement of the technology standard, which will contribute to the progress of technology to some extent; in the other hand, the patent owner may abuse his paten right in favor of the technical standard, which will rise a limitation of competition and a monopoly of patent right. There are four general modals for the forging of patent and technical standard. Modal 1: disguised forging; modal 2, a whole technology scheme is directly described as the technology standard, modal 3, part of the paten technology scheme is described in the technology standard, rather than whole of that; modal 4, several patents are forged into a technology standard in the form of a patent pool. In the procedure of adopting a technology standard, the abuse of patent right acts as unduly interference the adoption of the technology standard, refuse to publish the information of patent right, or, refuse being adopted into the technology standard e.g.; in the period of application of the technical standard ,the abuse behavior can be described as refuse to offer patent license; put clause into the license contract which will lead to a limitation of competition and monopoly, or, draw a contract for patent pool license which will limited competition e.g.. In the current legal system of our country, the regulation on the abuse of patent right is mainly described in the Patent Law, which regulates it from inside, and Antimonopoly Law, which together with other several laws regulate it from outside. However, the compulsory license for exploitation of a patent is not so reasonable, which limits its effectiveness of the regulation on patent right abuse; although definitely described in the Antimonopoly Law that the IP right abuse behavior is under the governing of this law, and a variety of abuse behaviors is listed in details, the description is too principally and lack of feasibility due to the complication of judging a patent right abuse behavior,so is the other several concerned law when it comes to the regulation on the standardized patent right abuse. The suggestion is that: amending the Standardization Law in order to empower the procedural overview on the proceeding of making up a technical standard; amending the Patent Law by designing special compulsive exploitation in accordance with the patent right abuse in the standardization of the technology; adopt the Antimonopoly Guidance On IP Right, in which lists the right abuse conducts in every period of IP concerned trading in details as possible, and meanwhile, sets special chapter which describe the standardized paten right abuse conduct particularly...