Legal Regulations And Countermeasures For The Patent Abuse Of Transnational Corporations In TD-SCDMA

Time Division-Synchronous Code Division Multiple Access is referred to as TD-SCDMA in communications industry, which is supported by the Chinese government and proposed by Datang Telecom Technology Group as the third generation mobile communication international standards. TD-SCDMA is a technology standard with general characteristics of technology standard, which is open, unified; scientific, reasonable; economical; developmental,etc. TD-SCDMA is technology standard related closely to patent; however, the combination patent with technology standard could lead to the abuse of rights.At present, the patent abuse which take advantage of patent pool in TD-SCDMA takes on many forms: monopoly pricing, conditional sale, fixing a discrimination pricing, refusing to license of applicant, etc. The patent abuse which take advantage of technology standard in TD-SCDMA takes on many forms: obtaining improper benefits by information superiority, refusing bringing patent into the technology standard, using private agreement for restricting competition, arbitrary issurance patent infringement warning, cheating, etc.The patent abuse harms the interests of Chinese communications and consumers seriously, impeding the healthy development of Chinese communications industry. Therefore, it is necessary to regulate the patent abuse in TD-SCDMA. We can take the following measures: regulating the refusal of license by compulsory licensing of patent law, regulating the restrict competition and fraud by the effectiveness of contract of contract law, regulating the fraud by the basic principles of civil law, regulating the conditional sale and arbitrary issurance patent infringement warning by articles 12,14 of anti-unfair competition law, regulating the monopoly pricing, the discriminatory pricing, the conditional sale and the refusal of license by the articles 17,18,19 of anti-monopoly law, etc.In addition, we can also take following countermeasures: enhancing the autonomy of research on communications technology, setting technology standard actively, improving a patent alliance of TD-SCDMA, establishing the early warning mechanism of intellectual property rights of TD-SCDMA, establishing the system of information disclosure of patent, etc. It's an effective way to regulate the abuse of patent by law and strategy, which protects interests of domestic communication and escorts the healthy and rapid development of Chinese telecommunications industry.