The Research About Misuse Of Patent In Technical Standards

Technology standard is a uniform regulation for some repeat technology affairs within a fixed range. It has a nature of public binding and social publicity. The purpose of such regulation is to promote market competition, advance technology and increase the consumers’ welfare. Patent is an invention which satisfied the conditions of a patent and being approved by the competent authority after a legal procedure of examination. It is a right of monopoly exchanged by a public invention, with a nature of privity and monopoly. Since the economy continues growing, the patent and technology standard system are more and more important, and the market requires the two system to be integrated. However, such integration would result an unavoidable conflict between the privity of a patent and the publicity of the technology standard. The main expression in practice is, the patentee will take the advantage of his position in the market, break fair competition for the purpose of maximum profit, after his patent being adopted by the technology standard.To regulate the misuse of patent and maintain the market order, this paper tries to make some suggestions based on analyzing the present law and regulations in China, using the relevant lawmaking experience of international standard organizations and some countries like US, Europe and Japan for reference, and combining Chinese practice. The system could be improved through the following aspects:firstly, insist the principle of benefit balance, this is the nature of patent system, and should be carried out from beginning to end even after the patent being adopted into a technology standard. Secondly, bring RAND principle which has been widely accepted by countries and international organizations into the system to regulate the misuse of patent. Thirdly, to make up the defect of RAND principle, the principle of implied permission could be established to improve the principle of disclosure in technology standard system. Fourthly, establish particular antitrust law or guideline to regulate the misuse of patent in technology standard and set up specialized agency to enforce it.