Research On Patent Information Disclosure System In Technical Standards Setting

"Technical standards" emphasize and protect the public interest, from the perspective of right, standards should be seen as "the right of resource sharing " or "the right of resource common", which means the main stakeholders share resources as a civil right without supremacy and exclusiveness; the patent right, otherwise, is a kind of private rights. It costs much for the right owners to develop the technique and achieve the right. As paid for intelligence and capital, the right owners endevour to maximize the benefits to pursue a return. Therefore, technical standards have the exclusive character of monopoly. There is a internal contradiction between technical standards and patent. However, for the requirement of technical development, it is necessary to combine technical standards and patent which makes the contradiction further intensely.In this circumstances, in formulating technical standards, how to alleviate the contradiction and how to balance the interests of all parties is the problem need to be resolved.The interests of all standards information asymmetry problem. Relative to the patentee, standard setters, has more inside information, they can through various means, not involved in standards development at the expense of the interests of the patent to gain the information advantage of their interests; Compared to the standard practitioners, patent Also the owner has more information on the involved standard patent, the patent can hide, setting traps for the interests of the patent. Therefore, standards must achieve the full disclosure of patent information in order to ensure the balanced interests of all standards. Balance of interests must be set by the specific system can be achieved. The author proposed the establishment of China's technical standards in the patent information disclosure system, system settings is a means to achieve balance of interests, the interests of balance also needs to reflect the specific system settings.Three major standards organizations as the main international standards, its intellectual property policies have patent information disclosure system, we should learn from. International organizations in the process of developing standards, information disclosure through the patent system is a reflection of their values, through the system specific settings, or maintenance of certain interests, or inhibition of certain interests, and ultimately the balance of the interests of all parties. VITA enforce "prior disclosure", a strong impetus to the standardization organizations in the transparency of intellectual property rights; IEEE organization is voluntary in practice, though, but it has also taken the corresponding strategies to encourage members to disclose intellectual property rights, taken for no disclosure degree of punitive measures, will greatly enhance the enforcement of prior disclosure policy. Prior voluntary disclosure policy, good balance of the standard-setting side, the patent holder, the standard balance between the interests of the perpetrators Ogata: on the one hand increase the transparency of authority, so that standard-setters and practitioners might consider the use of alternative standards technology; the other hand, using voluntary incentives only encourage members to disclose patents and the ceiling price, is more acceptable for the patentee to raise the probability of the patent into the standard. However, the technical standard of voluntary, formulate caused many troubled: first, the direct result of the first is not to disclose its patent information; second, without distinction of voluntary, especially for the relationship between people's livelihood, the technical standard, voluntary disclosure as technical standards, implementation obstacles. Although policies such as "there is no disclosure to the degree of punitive measures" requirement, but such a provision in itself vague and lack of execution. For the above two difficulties, lack of legal enforcement power prior voluntary disclosure policy, is still helpless. Ultimately defeat the purpose of making standards, patents, technology promotion is subject to hinder, not to protect the interests of all parties. And mandatory disclosure system prior to the patentee harsh most stringent disclosure obligation and have the corresponding punishment measures to ensure the realization of the disclosure obligation, from a theoretical point of view, the best to avoid patent adverse consequences of such concealment.China is currently in extensive use of international and foreign standards and not have the necessary criteria for patent practitioners, the mandatory prior disclosure seems to be the best option. But in the process of developing standards, it should fully consider the interests of the patentee. Mandatory disclosure regime of mandatory pre-highlighted is that the punishment in violation of the provisions of the disclosure act, also is thus led to the large number of patents held by large companies questioned. The author recommends China to encourage the principle of prior disclosure is based, to disclose antagonism, both the principle of mandatory disclosure in advance for special requirements in some areas to give more specific disclosure obligations required by the disclosure of entry into force of doctrine.The subject of patent information disclosure must be clearly disclosed , in particular, be sure to include disclosure of the main standard setters; on the other hand deal with all the main distinction between the degree of disclosure and that disclosure of the counterpart. In the standard-setting process, the patent information disclosed in the main play different roles, their disclosure requirements are also different. Level of disclosure is set to disclose the contents of the "necessary" to limit the expression of public interest in achieving the same time, help patent protection.Disclosures "necessary patent" can be defined by two layers of macro and micro: macro is the development and implementation of technical standards that must be covered by patents; micro-speaking should be called "essential patent rights", is aimed at involving patents, Technical standards must be involved in one or a variety of patent rights. Disclosure of what the macro level to resolve the patent issue, followed by microscopic identification of specific disclosure of the contents of the perspective - the necessary patent rights.Aspects of the disclosure process recommended the establishment of the National Standardization Management Committee, various standards organizations actively involved in the patent information disclosed in the database, open standards organizations to disclose all patents and patent licensing statement. Management of the database, the National Standardization Committee to develop uniform management processes, and various standards bodies to supervise the implementation. Disclosure of patent information database of the specific establishment, updating, maintenance by the various standards organizations. Submit a statement on the deal based on the actual situation, treatment is divided into the following four categories: general statement processing, patent claims handling, processing and rejected amendments to the declaration statement processing.Finally, it should be pointed out that for the responsibility of non-disclosure, the substantial reason that the policy of patent disclosure cannot be implemented effectively is that there is no clear distinction between the requirements of responsibility. Clearly defining responsibilities, not only require the distinction between different interest groups but also require the distinction inner one interest group. Responsibility of different interest groups, including the responsibility of non-disclosure of patentees and standard setters, and standard executors do not implement in accordance with the terms of the patent license. The internal responsibility distionction within one interest group, take patentee as an example, means the standard setters'undisclosure responsibility and patentees'responsibility who do not take part in drawing up standards. Particularly, this paper analyzes the responsibility of standard setters'non-disclosure. Patent disclosure in setting standards, fucuses on patentee's information disclosure which makes the disclosure standards strictly and therefore, ignoring the responsibility of standard setters'information disclosure. Mltinational corporations, industry unions and other non-government standard setters paly an increasingly important role in the world, regional, national area and in setting and implementing industry standards. If there is no restriction on standard setter, in the circumstanse that the patentee and standard setter are the same person, it cannot be prevented that the standard setter would endevour to pursue maximum interest which may leads to monopoly and the abuse of intellectual property rights. Therefore, the responsibility of the subject should be defined distinctly.