Research On The Patent Hold-Up Of Technical Standardization

This article will simply discuss the patent hold-up in the technical standardization.In the context of globalization, the issue of standards has become a growing concern ofmany countries in the world, and standardization activities are always ongoing. As atype of standards, technical standard plays an important role in the development ofscience and technology today. In the technical standardization activities, technicalstandards always relate to patented technology, and they will be inevitably combinedwith patent rights. But this combination can also create some problems such as patenthold-up. In this background, through the combination of technical standardization andpatent rights this article analyses patent hold-up in brief to understand the regulations ofinternational standardization organization, some major developed countries and regionsas well as Chinese current law in practice. And this analysis will also point out someflaws in Chinese regulations to patent hold-up and briefly summarize some proposals.The whole article is divided into four sections besides the introduction andconclusion. It’s about32,000words.The first section summarizes the technical standard and patent right. By theanalysis of technical standard and technical standardization, this section introducesreasons for the combination of technical standard and patent rights and some interestcoordination problems of all parties caused by the combination.The second section analyses patent hold-up in the technical standardization. Thissection points out the understanding of patent hold-up, and analyses its definition,feature and types. Patent hold-up is because of the imbalance of all parties’ interest. Theone who hold up patents influences technical patents users by means of injunctionthreats and royalty stacking. And patent hold-up arises because the patent rights onbehalf of private interest and public interest represented by standards can not bebalanced. Patentees place restrictions on the use of standards through their patent rights,but it should not hold back the application and promotion of patents. This patenthold-up will also impact on the implementation of standards. So, regulations to patenthold-up are legitimate and necessary.The third section introduces regulations to patent hold-up in the internationalpractice. And this part is mainly a brief summary of the patent disclosure and licensingpolicies of some important international standardization organizations such as ITU. Nowadays, many developed countries and regions have their ways to regulate abuse ofintellectual property, but the anti-monopoly law is the main way such as U.S., EU,Japan and Taiwan, China.The fourth section analyses some Chinese regulations to patent hold-up of thetechnical standards. There are many shortcomings in the regulations to patent hold-up inpractice. For example, standards involving patents or not is still pending, the patentdisclosure and licensing policies in technical standards are still absent, some relevantlaws and regulations have been out of date, and the development of science andcapability of independent innovation is still very low. Therefore, China should improvethe legal environment, the capability of independent innovation, learn advancedexperience from other developed countries actively, and strengthen regulations to patenthold-up to promote the standardization and international cooperation.