A Study Of Patentability Of Paten Technology In Technical Standard

In the process of present economical globalization, more and more enterprises and states have realized the importance of technical standard. They throw huge amount of manpower and material resources into it to regulate and extend their technology aim to gain large monopoly profits, and try to make it into the protective technical barriers for the interests of their own countries and local areas. The reason why the technical standard is so powerful is because of the combination of the monopoly of patent technology and the universality of technical standard. Experts and governments, especially governments from developing countries, have taken measures successively to regulate the performance of rights on such technical standard, they reach an agreement, that is to acknowledge the patentability after patent technology is brought into technical standard. So far few people has yet opposed to this point or studied it deeply except Mr. Zhang ping, a professor of Beijing based Beijing University, as far as I know. He points out that whether patentability still exists after the patent technology is technically standardized, and he thinks it needs further study. Interested in Intellectual property law, the author of this article try to make a simple study in this field, tending to bring some enlighten remarks to lead to the real valuable opinions by others. The article groups into 4 parts, includes the importance of the combination of patent technology and standard technique; the unpatentability of patent technology after it is technically standardized; the legal principle of unpatentability and protection of patent after it becomes criterion. In chapter one, the author introduces the basic concept of patent technology and technical standard, and points out the importance of the combination of the two, from the perspective of the following 5 aspects: ①patent technology and patent standard; ②the combination of patent technology and technical standard; ③the demands of patent technology by technical standard; ④the standardization of patent technology helps to advance patent system; ⑤the standardization of patent technology benefits to develop national economy. In chapter two, the author firstly states the patentability of technical proposal, which includes practicability ,novelty ,creativity and other conditions with no patentability. During the process of discussion, the author uses comparative methods to contrast the related areas nationally and internationally. Secondly, the author analyses the possible monopoly actions which results from the standardized patent technology, such actions mainly focuses on the united industry monopoly and the bilateral monopoly through abuse of market control power. Furthermore, the author discusses the hindrance for public interest caused by the combination of patent technology and technical standard, for it violates the patentability conditions of technical proposal. Finally, the author makes clear that patent technology has no patentability after it is brought into technical standard. The third party of the article goes into the patent law and technical standard from the perspective of legal principle. The author investigates the reasonableness of unpatentability after the patent technology is standardized from the perspective of patent sociology and legal philosophy: in the angle of sociology, he talks about patent system and public interest, and points out that patent system is the balance of interests; and in the view of legal philosophy, he describes the fairness and public benefit. In legal principle of technical standard, the author mainly researches the essence and present status of technical standard. Part 2 and this part are the emphases of this article. The last part of this article discusses the protection of patent after it is technically standardized. This part mainly focuses on such issues as whether protection is needed after the patent is standardized, if the answer is no, what result will come out of it, and if the answer is yes, so how to protect it. In this part, the author firstly introduces the present situation of protection of technical standard, and then analyses the consequence out of it if it is not protected, and finally the author makes a conclusion that patent should be protected after it is technical standardized, and put forward the author's own assumption of protection. .