Issues Of Technological Standards And Patent Licensing In Internatioanl Trade

In order to improve efficiency, a united technological standard in international trade is necessary. With technology playing a more important role in international trade, patent has been taking an incredible prominent position. These two factors combining together, it is inevitable that public technological standard collides with private patent-related rights, leading to the study on technological standard and patent licensing in international trade.Technological standard is a kind of rule designed to lower the cost and to reduce in advance the uncertainty emerging from the repeated activities among people or technology, which is exactly the reason why technological standard is voluntarily accepted. This kind of social resource is not meant to be monopolized. However, patent brings to the holder all sorts of exclusive rights. The differences in their characters and the interests they represent have together exerted both positive and negative influences on international trade. There are some stipulations in the TBT agreement of the WTO concerning technological standard other than patent licensing, while the TRIPS agreement prescribes otherwise. So there is exactly no international law ruling these two legal relationships uniformly. The problems of patent licensing in technological standard can be categorized as the following three:the refusal to licensing, the encumbrance to patent and the accumulation of royalty. But the above problems can be solved by means of compulsory licensing, implied licensing and cap-setting on royalty.The three international standardization organizations have been the bellwethers in the field of international technological standard, the study on whose policies can be instrumental to the understanding and the resolution of the three problems. The principle of "Fair, Reasonable and Non-Discriminatory Principle"(FRAND) is universally used to balance the interests among standard-making organizations, patent holders and the implementers of the standard. However, due to the complexity of the problem and the difficulty in negotiating various interests, the principle is not explicit enough to be thoroughly carried out in practice. This dissertation seeks to introduce some modified models on the basis of FRAND principle, including the Maximum Cap Model, Ex ante FRAND, and Ex ante disclosure of general royalty rates, which can be used to resolve the aforementioned problems.Laws and regulations relating to standardization and patent are not complete and enough to rule such problems in the People’s Republic of China. Such matters have been improved in Regulatory Measures on National Standards Involving Patents (Interim)("the Measures"), the expansion of the rules’ applicable scope, the clarity of necessary patents and related disclosing problems, the enforcing situation of the principle of fairness during the license of patent implementing, respecting the patent holder’s autonomy of will and conforming to the international standards. Unfortunately, the Measures lacks an explicit principle to determine the license fees and a comprehensive system to solve the disputes. Based on the analysis in the previous chapters and the China’s legislating situation, some suggestions are given at the end of the dissertation, like including implied licensing and slightly changing the novelty standard in our patent law, improving our working methods in the WTO and keeping refining China’s standardization strategy. At last, given the analysis in the previous chapters and the situation of legislation in China, the author has also come up with some advice on law-making for reference.