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On The Practice Of Economic Law Ideas In The Standard-Essential Patent Dilemma

Posted on:2016-09-09Degree:MasterType:Thesis
Country:ChinaCandidate:J M LiuFull Text:PDF
GTID:2296330479488063Subject:Economic Law
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Reviewing our country’s research process of economic law this year, we can find the feature that, to some extent, instrumental and practical system is excessively pursued, but there is relatively no strong core spirit between systems and component parts, which is partly because, in our longtime research, we unanimously ignore the upper-seat theoretical proposition-----Economic Law Ideas.Economic Law Ideas are the sub-concept of the idea and the idea of law. As regards the discuss of the idea, it lasts hundreds even thousands of years in history of western philosophy in which Plato, Aristotle, Thomas Aquinas, Kant, Hegel and a host of excellent ideologists and their various idea theories were emerging. Though these theories have their inherent historical limitations and seem unreasonable to some extent today, we can capture the general meaning of idea, that is a kind of ideal, eternal, spiritual widespread pattern.As for the idea of law, it is supposed to be the upper-seat concept idea’s specific mapping and application in legal field.idea of law has multidimensional and compound feature, it is whole, microscopical and rational grasp and construct of law and the highest pattern of manifestation of legal ration. From the perspective of philosophy, idea of law has many levels including ontology, axiology and methodology. The nature, origin, operation, standard, spirit, objective, value and method of law these basic concepts are all manifestations of idea of law in different sides.General function of idea of law lies in guidance of legislation and application of law. It should serve the function of value guidance and judgment for every link of legal research, making and operation and provide strong and universal explanatory power in all kinds of problems relating law.Economic Law Ideas are also the specific reflection and application of idea of law in economic law field. There are "monism", "dualism" and "pluralism" about Economic Law Ideas theory in present economic law circle. It is because that people don’t figure out the level and construction of Economic Law Ideas. After studying various theories comprehensively, we find that most theories have one or more following problems.1.Lack of enough theoretical property and abstraction which is probably caused by deeming some one-sided feature of economic law as Economic Law Ideas so as to lack strong explanatory power to all or part of economic law.2.Mix of Economic Law Ideas with value and basic rules of Economic Law, and other conceptions of economic law.3.Failure of putting forward of Economic Law Ideas containing relatively thorough level and construction and that thorough theoretical system of Economic Law IdeasBased on this consideration, this dissertation tends to adopt the "one principal and four secondary" idea theory put forward by Professor Li Changqi et al. It holds that Economic Law Ideas contain a principal idea------the Humanistic Idea and four secondary ideas derived from it------the Society-Orientation Idea, the Substantial Justice Idea, the Sustainable Development Idea and the Moderate Intervention Idea.However, as for this theoretical system, this dissertation holds that two points should be continuously perfected and complemented.1. Economic Law Ideas’shareable feature. It responds the misunderstanding that "only those ideas are monopolized by economic law and not possessed by other department law can be claimed as Economic Law Ideas"2.The standards of determine Economic Law Ideas. Its resolution will make Economic Law Ideas more logically rational.This dissertation holds that, one hand, all Economic Law Ideas are not monopolized by economic law. On the contrary, many ideas are shared with many other legal branches and influence economic law and other legal branches at the same time. But undoubtedly economic law is the most typical one among these legal branches that interprets and reflect these ideas. On the other hand, it will meet two standards at the same time in determining economic law and any other legal branches’ ideas. One standard is this idea exerts fundamental influence on theory construction and system design of this department law. The other is among those department laws influenced by this idea, this department law is most typical in reflecting this idea.The multidimensional and compound system of Economic Law Ideas can be mainly elaborated from three levels------ontology, axiology and methodology.Firstly, ontology solves the fundamental problem of emergence of Economic Law Ideas. The emergence of Economic Law Ideas is based on particular basis. It is based on adjustment of dual failures of government and market from the perspective of economic, on integration of civil society and political state from the perspective of society and politics and on need for legal system generated by the modern objective environment’s change. Economic law, with respect to civil law and administrative law, can more powerfully respond these problems.Secondly, axiology works out the judgment of value, objective and other problems in level of value in theoretical system of Economic Law Ideas. It mainly contains the Humanistic Idea and the Substantial Justice Idea. As for the Humanistic Idea, it should be the principal appeal of all subjects. All subjects are supposed to pursue ultimately all-round development of human beings. It can be deconstructed into three progressive elements------intergrowth, harmony and development.the Substantial Justice Idea grows vigorously in formal justice idea’s failure to realize virtual and consequent justice. Traditional civil law holds that there are no significant differences between people, so the concept "Individual" is abstracted to erase the objective specific difference. Therefore, as long as law has, at a relatively low cost, safeguarded justice in expressing willing and freely contracting between subjects, virtual justice can be realized. However, along with the change of social economic condition, the premise that market subjects are equally powerful has gone. Under this circumstance, we must, to some extent, abandon formal justice idea and give vulnerable subjects appropriate unbalanced protect so as to realize virtual justice by applying seemingly unfair distribution of right and obligation.Thirdly, methodology mainly figures out the problems of standards and reified guidance of economic law’s practice including the Society-Orientation Idea, the Sustainable Development Idea and the Moderate Intervention Idea. the Society-Orientation Idea is rooted in trend of legal socialization thought grows vigorously in modern legal field. The standard of law evolves from pure country and person to society, which is the privatization of public law and the publicization of private law when reflected in public law and private law field and is the Society-Orientation Idea when reflected in economic law field.the Sustainable Development Idea stresses the chronicity and dynamics of the realizing process of the Society-Orientation Idea, the Substantial Justice Idea even the Humanistic Idea. the Moderate Intervention Idea solves the problems of balance of power in intervening economy by state and market. Though it seems opposite to those previous ideas, but in fact it is just the Moderate Intervention Idea that makes adjusting methods of economic law economic law.The theoretical system of economic law has ultimate explanatory power and strong guidance to all economic law systems. Meanwhile, it can provide precious thinking to some problems crossing economic law and other legal branches. The dilemma of Standard-Essential Patent (the "SEP") is an example.SEP is combination of standard and patent. It refers, in present technical condition, intellectual patent aiming to implement some standard but not infringing certain patent without alternative technology. The opposition between standard and patent determines the formation of SEP predicament. Standard is influenced by scale effect and network effect so that it must be popularized for its applicability to get more access therefore make the greatest contribution to our society. Patent is a kind of private right. To get microcosmic department profit, a patentee is very likely to carry out some action that hinders the implementation of standard, which goes against the popularization of standard in macroscopic view and doesn’t accord with the original intention of establishing the standard system, anti-monopoly system even the patent system.Patent law and anti-monopoly law both deem maximization of social not personal’s profit as their ultimate value pursuit. But they adopt different specific ways. If we can achieve consensus in this point, we will rapidly examine the effect of realizing through two systems the ultimate mission of SEP that is to promote social economic efficiency.Through introducing analyzing five ideas of economic law and, we will find that humanistic idea demands intergrowth of patentees, licensees and the public and true harmony and balance of profit behind the intergowth even society development promoted by this, the Substantial Justice Idea points out that two parties of SEP are significantly unequal in negotiating capability and puts forward the system thought that we can balance the profit relationship through necessarily restricting the mighty patentee’s monopoly power acquired via combination with standard. the Society-Orientation Idea responds the question in what perspective the profit balance is on earth realized and solves the premise that SEP must firstly considers social benefit. the Sustainable Development Idea strengthens longtime and dynamic realization of harmony of every party’s benefit in view of society-orientation in predicament of SEP. the Moderate Intervention Idea controls the base line of intervening patentees’right, that it to ensure the interest that is not opposite to social public interest.Through analyzing Economic Law Ideas, we recognize that we should insist on two principles to walk away from the predicament of SEP.1.Firm insist on restraining SEP owner’s monopoly power acquired through combination with standard and popularization of standard and endowing SEP owner’s obligation of making FRAND permission in specific system.2.Firm insist on protecting SEP owner’s other patent right, which is to determinedly protect SEP owner’s right to charge proper patent permission fee. And the reasonable range of such permission fee is a quantification problem worth further thinking and refining in practice.
Keywords/Search Tags:Economic Law Ideas, Humanistic Idea, Society-Orientation Idea, Substantial Justice Idea, Sustainable Development Idea, Moderate Intervention Idea, Standard-Essential Patent
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