Research On The Application Of FRAND Policy On The Antitrust In The Standard Essential Patents

With the development of people’s awareness of the relationship of the technical standard and intellectual property(IP),more conflicts happen between standard users and IP holder.Actually,it’s because the opening and the publicity of the technical standard and exclusivity of the IP rights.Although patent is a kind of personal right, when it connects with the standard and become a standard essential patent(SEP),it will be given with the publicity,mandatory and normalization.We have to respect and protect standardized IP and in the meantime,resolve the problem of the regulation of SEP in the implement of the patent.How to resolve this problem has become a big challenge that the administrative department,the legislative department and the judicial department of all countries have to confront with.In the area of global wireless communication,the combination of the technical standard and the IP brings a lot of IP conflicts between big transnational enterprises,which show the competition of transnational IP and its global IP layout.And it always presents a phenomenon of relating lawsuits among multiple countries and lawsuits in and outside of a country,which further prove the importation of the regulation of these conflicts.For such a background,this article is intended to do a foreseeable research on the tendency of the regulation the SEP through analysis.Based on some typical already known cases in and outside of our country,summarize the methods of handling this kind of problem in the global world.The scholars all over the world have discussed about this question a lot.Although they have not reached a systematic result, their research has reached some achievements in this field.And many Standard Setting Organizations(SSO)are also trying to revise their IP policy.In addition,both United States and the European Union have obtained a lot of experience in this area.And,China has made its own forth in this area,too.All these are the resource of material for this research today.Based on these materials,by using the research techniques like text analyzing,case analyzing,comprehensive comparison,qualitative analyzing and etc.,this article analyzed the application of antitrust and FRAND policy in the SEPs.By the study,this article finds that,due to the specialty of the SEPs,when the patent is accepted into the technical standard,the SEP holder is very possible to offend the FRAND policy and cause the antitrust problem in the implement of the standard.And there are some problems in the definition of the relating market of the SEP and in the identification of the abusing of the domain status of the market in practice.Moreover,the nature and legal effect of the FRAND policy are remained controversial,as well as the application of the injunction and so on.However,through analyzing cases of different countries,we can tell the tendency and main views of these problems.The author concentrates her eyes on contradiction of SEP holder and the standard user because it’s the main contradiction,and how to resolve the contradiction is exactly what this article want to talk about.Besides the introduction,this article is divided into four chapters.Chapter 1 overview the basic theory of SEP and FRAND policy.Through the introduction of their background,reason and meaning,the author analyzes their specificity.And the author also conclude that the FRAND policy has become an international usage all over the world.Chapter 2 states the necessity of the regulation of the abusing of the SEP.The author analyzed the main performance of abusing of the SEP,and then explain the current situation,legislative authority and the significance of regulation of the abusing of the SEP.Chapter 3 analyzes the cases of different countries to conclude the experiences of different countries.And through analysis,the author also finds the rules of the application of the FRAND policy on the antitrust in the SEP.Chapter 4 describes the deficiencies of the regulation of abusing of SEP in our country,and by learning from other countries,the author suggests to improve the legal regulation of the abusing of the SEP in three dimensions:the administrative department,the legislative department and the judicial department.China is a fast-developing country and has always relied on the imported technology which is limited to the standard.And the standards are mainly controlled by developed countries like U.S.,EU and Japan.Because the complication of the SEP,the countries all over the world are making their own steps on the recognition and the practice of the SEP disputes.China has made its own step,too.Although it’s not perfect,we can learn from other countries and build a more applicable system on the regulation of the SEP with the FRAND policy.