Anti-monopoly Regulation, On Technical Standards In The Patent Misuse

Technology standard is one kind of or one series of files with some compulsory requirements and instructional performances, including specific technology requests and concerned technical project, aiming at making the product or service meet the demands about security and market admittance. Patent, as one of the objects of intellectual property right, is a exclusive right granted to inventors or devisers by state department legally.Traditionally, there is scarcely any relationship between technology standard and patent which is exclusive, regional and of timeliness. In contrast with patent, technology standard is characterized by general application, maturity and free, broad usage, which is gathered to avoid involving in patent technologies. But, with the development of advanced and new technologies, there is no ready general-purpose technology which can be collected as technology standard in the field of advanced and new technologies. All of the inventors of advanced technologies have strong consciousness of intellectual property right protection, and their technology fruits almost are covered with patents completely.Therefore, standardization organs have no choice but to negotiate with the patentees so as to gather patent technologies as standards within the advanced and new technology. In the process of present economical globalization, more and more enterprises and states have realized the importance of technical standard. They throw huge amount of manpower and material resources into it to regulate and extend their technology aiming to gain large monopoly profits, and try to make it into the protective technical barriers for the interests of their own countries and local areas. The reason why the technical standard is so powerful lies in the combination of the monopoly of patent technology and the universality of technical standard。For one thing, technical standards and patent right a share some characters in common. For the point of inspiring technical inventive spirit, they both bestow the concerned rights owner with certain exclusive rights. For the point of encouraging the patentee to develop, apply and assign technology, they both impose certain restriction. For the other, as a result of the balance of patent rights and the social common value the prior value of patent law is to protect the interest of the patentee, provided that the public interest has not been infringed. In order to keep this balance, the patent limit system is set in every country' s patent law such as the exclusive rights period, the obligations in spreading the patent, the compulsory licensing system and the exceptions not treating as infringement. Even so, for the combination of patent and technical standard, the balance is inevitable to be broken to some extent.The purpose of technical standards is to reach a reasonable distribution of the technical resource and a promotion of technology development. Combining with patents, technical standards are controlled by some minority to limit competition and gain monopoly benefit. For this reason, the pursuit of combining their patented techniques into the technical standards is not only for the purpose they can get the exclusive patent rights, but for the purpose they can control the technical standards by means of their ownership of the patents in them. As a result, patents in technical standards can be easily abused, which will threaten the core value of liberty and break the balance mechanism of patent system.With monopoly of patent rights and unity of technical standards, the technical standards not only escape from the territory limit of the patent right, but keep a monopoly position in market access and exclude the products not according with them. And for the erasing of the tariff barrier, technical standards have been a main barrier in international trade. therefore , the research no how to use technical standards in fair doctrine and how to regulate the unfair use of Patent rights in technical standards has theoretical and practical value.The inadequate knowledge about the close relationship between IP and technical standard, the inadequate understanding of the importance of participation into the rule-making and rule-controlling technical standard, specially the international standard, and the lack of study on the abuse of technical standard by developed countries and multinational companies, collectively lead to the lack of solutions if the problems arise. This thesis makes a study on the new changes of technical standard from the perspective of patent and analyzes the abuse of technical standard based on the anti-trust law. The last chapter, based on the regulations on the abuse of technical standard in the judicial practice in other countries, makes an analysis on the regulations on the abuse of technical standard in China, and points out the deficiencies within the existing laws of China and puts forward the insightful suggestions to the relevant laws and regulations.