The Research On Standardization Under The Perspective Of Anti-Monopoly

In the new economic era background, with the further development of"technique patented, patent standardized", standardization becomes increasinglyprominent for States and enterprises. Based on this reality, the phenomenon ofstandardization exists universally in both international and domestic scope, playing asignificant role for the development of social society. However, the features ofstandardization make it easy lead to all kinds of monopolistic conducts thateliminate or restrict competition, which has great damages to the efficiency ofmarket economy. For now, two causes become the root of monopolistic conducts inStandardization: one is for standard contained the intellectual property which beingexclusive to the right holder; the second is for the lack of effective control on theadministrative power of the Standardized Management Institutions. According to thetypes of monopolistic conducts in the Anti-monopoly Law of the People’s Republicof China, monopolistic conducts in Standardization mainly include monopolyagreement through the executive of intellectual property rights, abusing of dominantmarket position and the administrative monopoly which lead by the abusing ofadministration power. In the present legal system of our State, the main law that takecontrol of the monopolistic conducts in Standardization have Contract Law, PatentLaw, Standardization Law and its relevant regulations, Foreign Trade Law, theImplementation Rules of Sino-Foreign Joint Venture, Regulations on theAdministration of Imported Technology Contract, Anti-fair Competition Law andAnti-monopoly Law etc. But the obvious flaws that exist in those laws make it hardto meet the need of the society, so the further improvement of those Laws still need.Taking reference from the practice of European and American countries, andcombining the standardization’s features with our national conditions, we shouldperfect the related Law, such as Patent Law, Standardization Law and Anti-monopolyLaw, for the effective control to monopolistic conducts in Standardization. Speciallyspeaking, we may build the abuse defense system of patent right and compensatesystem against malicious prosecution of patent right in Patent Law, meanwhileperfecting the compulsory licensing system of intellectual property. As in theStandardization Law, we might make the information disclosure system more detailwhen patents were included in a standard and establish a strict evaluation system for "necessary patent". And in the Anti-Monopoly law, special law for regulating thiskind of monopolistic conducts is needed, as well as enacting Guidelines for the Useof Intellectual Property under the Antimonopoly Act.