Study On The Patent Hold-up Legal Issues In Technical Standards

With the development of high technology in the modern society, the form of technical standards related to intellectual property became more and more complex, especially in the field of patent. The patent holders engaged in a series of patent hold-up by technical standards for a wide range of effects to make their patent market forces beyond the general patent, include of ask for a high patent royalties, reject to permit, threat of prohibitions. This paper attempts to analyze the legal characteristics of the patent hold-up to clarify it is a legitimate patent behavior, or intellectual property rights abuse, or monopolistic, and quoted foreign patent hold-up approach combined with China’s actual situation, in order to initiate some inspiration to put forward specification to start a discussion in the course of practice.This thesis consists of four parts. The first part is about the mutual relationship between technical standards and international property rights, and introduces the reason for the combination of technical standards and international property rights and the probable problems, which finally bring the "patent hold-up"The second part elaborates the reasons, consequences of patent hold-up in detail, especially explains that patent hold-up is actually not absolutely illegal but to be determined according to the situation. Therefore, the views of legal, contract breaching, right abusing, and monopolization are all not correct. Considering the bad effect towards market competition brought by patent hold-up, the regulation for this is very important.The third part is about the legal practices of the main foreign countries and regions in the world, including America, Japan and other developed countries of European Union. In America, it is taken charged by FTC and Antitrust Division of Justice Department. And in Japan, the situation is similar, but FTC takes charge it independent. European Commission the competent department in European Union, which make a final decision after reviewing initiatively and passively.The last part makes legislative advices under the base the analysis on the present situation of China. The existing laws about patent hold-up and the practices are introduced in the former and the suggestions, such as passing the antitrust intellectual property law, constructing specialized department, are made in the latter.