Study On Legal Issues For Adopting Patent In Technical Standard

Adopting patent in technical standard helps deepening market influence, and a series of legal issues which disrupt the order of the market competition have produced. Without the authorization of the patentee in the standards have infringed the patent right of patentee, the patentee has not been fully disclose related patent information, not necessary patent to sell, refused patent license, patentee boycott, excessive pricing are the main forms of this issue.The above-mentioned problems be resolved primarily by Anti-monopoly law in abroad. This is based on the country's legal traditions and standardized system structure. Present the research about this aspect mainly concentrated on Anti-monopoly law in China. Through Anti-monopoly law is of significance to solve this problem, but it can't relieve till the damage have been committed, even it have inflicted considerable losses to those who are implementing the technical standard. These are disadvantages to technical standard stability and development. So it is significant for us to plug up loopholes in terms of their sources and systems.The legal issues in adopting patented techniques in technical standards can be dealt with in the following ways. First, our existing standardization system needs to be improved, because in such a system, the setting of standard is heavily affected by administrative concerns, difficulty in absorbing kernel patented techniques, and incapability of representing the patentee's benefit. Standardization system with government regulation, market leading and enterprises centered should be developed with reference to the experience from abroad markets and, clarify the function of market and government, development the standardization system. Second, we should perfect the patent management policy of Organization for Standardization such as the patent disclosure obligations, licensing terms, determining the effectiveness and the validity of patent etc. if these key issues can be clarified and externalized, will avoid the future dispute effectively. Third, we should perfect the patent law and its implementing rules, and pay particular attention to the coordination for patent policy. Finally, it is important to recognize that addressing the legal issues in the adoption of patent in technical standards is a systematic project which requires joint efforts from our nation's standardization management bodies, patent management bodies, the court as well as civil standardizing organizations, in order to improve the entire relevant legal system and guarantee coordination of measures between the legislative, the administrative, and the judicial departments.