Problem Reasearch Of Patent Covering Technical Standards

Patent covering technical standards are those which cover the technical standards when they were established. On the one hand, there is the TRIPS agreement's lowest standard for patent protecting, which the developed countries have benefit a lot but the developing countries profit very little. The TRIPS agreement's isn't balanced. On the other hand, aided by the technical standards' the characteristic which forces to follow, Patent covering technical standards turn from one kinds of private right which do not have the compelling force to the rights which other people have to seek for license, and break the balance between rights and obligations.Looked from the history of the patent law, patent is originally created to promote advance in technology,stimulate innovation,maintenance benignity competition, have done good much. As a kinds of new form of property rights, Patent has derived much rich nutrient from traditional property rights theory, and its rationality and necessity can be proved enough by the traditional property rights. In the same way, limitations of the traditional property can also be applied to patent rights, this can go a great way with understanding patent covering technical standards. With the aid of the traditional property rights theory, we could understand better about the changes between paten right holders and the social public, and we could get enough support on this problem. This is the first innovation of this paper.Technical standards can increase social welfare, are also very essential for the wide adoption of new technologies in the marketplace. Technical standards can be classified to De Facto Standards and De Jure Standards, it can provided network effect in the marketplace. Because of network externality, technical standards can lock-in its user, thus can form very high threshold for those substitute technology. Even if the new technology is very excellent, it cannot compete with technology in standards.The combination of the technical standards and the patent is inevitability. On the one hand, the combination has promoted the technical level of technical standards, on the other hand, it harms the realization of public interest goal of the technical standards and the patent. The combination often goes along with the patent pool's foundation, which is used to license to the non-members of the patent pool. The combination and the patent pool altogether have strengthened the patentee's formidable status in looking-for license negotiations.Facing the relations of rights and obligations which is serious unbalanced, patent law should and can do with it. To amend it, not only recognizing that intellectual property rights are private rights, but also recognizing the underlying public policy objectives of national systems for the protection of intellectual property~1. We should find an reasonable and suitable balance point. China should adopt the patent exhaustion and persuade others do so, make it easier for us to grant compulsory licences on patent covering technical standards and make it the freedom to determine the conditions to granting a compulsory licence. By comparing several countries' standpoints on patent exhaustion, we prove that it is necessary and feasible to applying the patent exhaustion rules of interpretation of patent covering technical standards. Compulsory licences are jury limitation to patent, are born to make up the flaw of patent. By comparing the difference of compulsory licences between the and , we can find it is clear that the rules of compulsory licences of TRIPS AGREEMENT is imbalance. As for patent covering technical standards, its rights and obligations get out of trim even more. To reverse it, granting the compulsory licences is necessary and feasible.