Antitrust Law Regulation On The Abuse Of Patent Rights In Technical Standards

With the rapid development of high-tech, the combination of technical standards and patents has become an important trend in the development of technical standards and the promotion of patent globalization in today’s world. Subjective and objective factors together led to the combination of technical standards and patents. It is like a double-edged sword:on the one hand, it has a positive effect on market competition; on the other hand, Patent misuse in technical standards will limit market competition. Patent misuse in technical standards has its own particularity, and its forms are varied. In the standard-setting process, there are the failure to disclose relevant patent information, boycotts, etc.In the standard implementation process, there are refused permission, tying, charging unreasonable licensing fees, patent pools, etc.There are three main ways to regulate such behavior:the principle of forbidding the abuse of rights in civil law, the rules of limiting rights in patent law and the relevant rules in antitrust law. However, due to its own limitations, the first two ways can not effectively regulate such behavior according to the characteristics of patent misuse in technical standards. In contrast, due to the consistency of ultimate goal of antitrust law and patent law and its own superiority of analytical methods and handling mechanism, antitrust law adapted to the needs of regulating such behavior. Against patent misuse in technical standards, Developed countries and regions, like the United States, EU and Japan, have formed a set of detailed and effective antitrust law regulation system in the long-term practice.In recent years, multinational companies in China frequently launched an attack on our enterprises by abusing the patent in technical standards. But in terms of regulating patent misuse in technical standards, the relevant rules of our antitrust law are too vague, lack of operability. When we set up antitrust law regulation system of patent misuse in technical standards, we must take account of the dual goals of encouraging innovation and protecting competition. Based on China’s national conditions, we must severely regulate patent misuse in technical standards. At the same time, learn from the useful experience abroad, we can adopt the legislative mode of combining principled rules with specific rules, and establish the review method based on the rule of reason, supplemented by the per se rule, and analyze such behavior by classification. In addition, we should set up a specialized antitrust enforcement agency and establish the criminal responsibility system against monopolistic behavior. Only in this way will we be able to effectively regulate patent misuse in technical standards, to protect market competition.