Research On Implied Permission Of Patent Technology Standardization

Patents and technical standard have no necessary connections in the early days.For the purpose of avoiding patent infringement and reducing the cost of popularizing standard, Organization for Standardization usually tries not to introduce patents into technical standard.But since after 1990 s,with the developments of science and technology more and more high and new technology achievements are granted patent.It will be extremely difficult for the Organization for Standardization to circumvent patents when the standards made.The patent can be included into the technical standard,and thus to ensure that it will be promoted and implemented. The patentee is accessible to obtain the factual dominance in the market. Therefore, some of the patentees will be likely to take part in setting standards and they will include the patent into the standard for maximum profits. Therefore, the behavior of the other party is usually regarded as patent infringement, and they will be filed a lawsuit in the end. When the other party responses to the lawsuit, he or she will put forward patent acquiescence as his or her justification.As for the judicial actions and counterplead initiated because of the Patents and technical standardization, the difficult parts of the cases are whether to cognize them to infringe upon patent rights or cognize them as acquiescence of the patent rights. but all the laws and regulations in existence in mainland China, acquiescence is not stipulated as the reason of counterplead. Therefore, better solutions should be found within the patent policies, theory and the legal frameworks. As far as the author is concerned,under the background that technical standardization is popularized home and abroad.Researches for the applications of the laws and regulations in connection with the acquiescence of patents and technical standardization,which will provide choices for system reformations of the patent laws suitable in China.Therefore the researches of laws for acquiescence of the patents and technical standardization are discussed in this article.There are 4 parts in the main body,such as summary of the acquiescence of the patents in formulating the technical standard. The acquiescence systems from the perspective of comparative law.China’s legislation for the acquiescence of technical standardization and the analysis of practice.The building of China’s acquiescence of patent and technical standardization.The first part of the article is the summary of the patent acquiescence in formulating the technical standard, trying to make it clear how technical standardization influence the patent acquiescence. And the necessity of adopting the rules of the patent acquiescence under the circumstance of the patents and technical standardizationThe second part is the probing into the patent acquiescence system from the perspective of comparative law.Britain, Germany, America are those countries with theory of patent acquiescence in much earlier days and with better developed patent acquiescence. By using for reference the examples of patent acquiescence systems and its developments in the above countries as Britain, Germany, America.Hopefully to find some theory basis for the system of patent acquiescence. Hopefully difficult law problems could be solved when permission is carried out with the patent technical standardization.The most important part is this third part, it is expatiated in this section the current situation of legislation of patent acquiescence in China, development tendency and the current situation of adjudgement. First of all it is expatiated and confirmed the development in the laws and regulations when patent acquiescence is included into the reasons to counterplead tort because of technical standardization. With the theory research goes further and the development demand of legal practice,the formulating of legal rules is a matter of time. secondly, Judicial Dilemma will have to confronted in China. Even if in the infringement litigation, affirmation of the acquiescence of the patents is increasing because of the technical standardization. It is still not clearly stipulated in patent law and the relevant judicial interpretations. It is still in stage of probing and developing in the legal practice of trial experience when the counterplead is proposed,far from maturation.What’s more few monograph about this respects in academic circles. Because the serious lack of relevant provisions as legislation is concerned,which makes the uncertainty in the field of adjudgement because of the blank space in legislation.The last part also the fourth part is about the building of China’s acquiescence of patent and technical standardization.It is discussed here about the application of laws when acquiescence is proposed in formulating technical standardization. And suggestions are made about how to make the legislation of legal norm more perfect.