Study On Standardization And Anti-Monopoly

Cisco v. Futurewei , the case which was deemed as the first one to monopolize market by de facto standard, put forward a new question during the process of Chinese standardization. The lawsuit makes scholarly circles and judicial circles the first time think it serious what standardization means to China and how it effects on Chinese economy and judicial practices, and how China copes with against the background of entry WTO. Scholars have different views on the relations between standard and intellectual property, and some views contradicted with each other. Since this kind of research has its inherent limits and cannot analyze the deep relations between standardization, this article takes a new approach, from the aspect of anti-monopoly law, to study the problems of monopoly originated from standard and standardization.This article takes the approach of case analysis to introduce the case. This chapter makes it clear how the case of Cisco v. Futurewei happened and what the court's decisions were. This article puts much emphasis on the charge that how Cisco cooperation made the use of de facto standard to take the advantageous edge over the software market by Futurewei. In Futurewei's accuse of Cisco cooperation, Futurewei cooperation points it out three points: first, what de facto standard and de jure standard are;second, how standard combine with monopoly;third, what standardization brings for enterprise, consumers and society. The conclusion can be drawn that it has become a certain rule that in economic process, standardization is a very important component of free trade competition and has its own possibility of inducing monopoly. In this process, standard standardization and monopoly have the inclination to combine with each other. It needs to point out that standards have many kinds, among them, de jure standard itself will not become the requirements that will cause the formation of monopoly to dominate the whole market. However, de jure standard is not certain to free from any relations with monopoly, sometimes it play an important role in theformation of monopoly. So, when discussing the problem of de jure standard, it needs to analyze the concrete role that de jure standard plays in different cases. Since no law regulates de facto standard and leaves vacuum area for big companies to lay down industry standard, it itself holds the possibility of forming monopoly in store. From the analysis on de jure standard and monopoly on de facto standard, once the enterprise take the use of standard, or standardization to dominate the industrial market, it has violated the anti-trust law and has a bad influence on normal market order. So it is necessary to regulate this kind of behavior which disuses dominant market position.At present, there is no comprehensive anti-trust legal system existing in China, so there has no effective ways to regulate monopoly. On the contrary to Chinese present conditions, foreign countries have a mature legislative and judicial experience in standardization and anti-monopoly regulations. America mainly utilizes the reasonable principle to scrutinize whether a big company violates the anti-trust law when the big company uses de facto standard to go in for competition and gains huge profits. America takes a flexible approach to deal with the monopoly induced by de facto standard. European Unions takes the principle of removing disadvantages and reserving benefits to regulate anti-competition to apply the law of competition. Japanese legislation follows the American steps and also takes the reasonable principle. In judicial practices, the courts take the comprehensive scrutinizing procedure to decide whether a company's de facto standard violates anti-competition or not. On the basis of analysis on standardization and anti-monopoly regulations in foreign countries, for the purpose of perfecting legal system on anti-trust law, this article gives its advice on how to cope with monopoly caused by de facto standard. On legislation aspect, China should introduce anti-trust behavior model stipulated by America, adopt reasonable principle and no-repent principle to decide whether a de facto standard is legal or not and, besides the principal stipulations in anti-trust law, formulate special regulations and judicialrepresentations to deal with monopoly. In judicial practices, reasonable principle should be adopted to scrutinize dominant market power, the aim of standardization and the damages caused by standardization. This article holds the view that anti-trust scrutiny should scrutinize whether standard causes monopoly or not, as well as the process to set up standard, in order to safeguard Chinese orderly market economy, law order in processof free competition in China.