Study Of Standard-Setting Organizations' Patent Policies

Under the development of high technology,strong competition in intellectual property arena, it spurred the combination of technology standard and patent, thus formed the new standard strategy. The saying"Third-class enterprises sell the labor, second-class enterprises sell the products, first-class enterprises sell the patent while the super enterprises sell the standard"is the explanation of this strategy.But the combination of technology standard and patent made the reshuffle of the standard from the public nature to private. So it caused the conflicts between public interests and private interests, also made it become more difficult that using the patent law and anti-trust law to solve this justness dilemma. It is the theoretical and practical need to discover the equitable way and method. This article from the aspect of Standard—Setting Organizations'patent policies to discuss the equitable way, because the claim of patent right in standard will be restricted by the purpose of standardization performed by Standard—Setting Organizations(SSOs). As there is no better way for the time being, the patent policies of SSOs undoubtedly is a good precaution method.In China, it seems SSOs have no formal patent policies, given the importance of SSO rules governing the patent rights. There has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void, hoping it can also direct the legal practice in our country.This article followed this logic:"patent and SSOs—theory basis of SSOs patent policies—the analysis of the content of patent policies—the importance and suggestions to china". I discussed these contents in four chapters. Chapter I, mainly the general theory about SSOs, patent and the relations between them. First, the paper inspected the value of standardization: increased the compatibility between products, formed the network effect, improved the technology innovation and strengthened the competitive power in international trade. Knowing the reason why all the parties want to join the standard competition. Then I examined the relationship between patent and SSOs from the positive and negative aspects, issuing the presupposition of my argument.Chapter II is SSOs patent policies'logic extension from the theoretical angle. First I defined the scope that I discussed pointing out that the policies mainly referred to the participants of the SSOs. I try to analyze the nature of the SSOs'patent policies which was ignored by most scholars in contract law context. The inclusion is: The patent right policies of SSOs is not the new rule of intellectual property right, but the contract essentially binding the SSOs, participants and the standard users. Then I summarizes the reasonable existence from the realizable reason and theory foundations. The realizable reason included such as the combination of technology standard and patent, the SSOs'roles and functions. I revisited the patent law's philosophy and jurisprudence from the technology standard in order to convince the policies'reasonable existence.Chapter III is the scrutiny of the content of the patent policies. Through the introduction of three SSOs patent policies, I found the common rules and focused on discuss theses common rules: patent disclosure obligations, licensing terms. About disclosure obligations, the majority of SSOs had a policy imposed either an express or implied obligation that members disclose their patent. For licensing terms, there are two licensing model: Royalty Free(RF)and RAND (Reasonable and Nondiscriminatory licensing) in international community. I respectively examined their strengths and weakness, including fixing price term to suggest that the license approach may have one rather unfortunate jurisdictional consequence, needing improvement. At last I discussed other important questions such as the effect of withdrawal and territory of patents.The last chapter is the legal suggestions focus on China's SSOs : 1) Under current circumstances, there is urgent need for us to set up the mainly consistent patent policies;2)The patentee can still retain the patent right in technology standard, not need to transfer to the SSOs;3) Establish the patent disclosure obligations and the scope of disclosure;4) Adopt the RAND term, at the same time, offer the recommended licensing fees to parties; Considering the compulsory license for compulsory national standard but prudently perform in practice;5) Impose the breach duty of SSOs participants and insert the guideline or rules for withdrawal and patent continuation.SSO rules governing patent right fundamentally change the way in which we must approach the study of Intellectual Property right(IP) such as patent. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. Although SSO's patent policies are not the best, maybe can not solve all the problems, it is still a good practical way to balance the legal and interest conflicts.