Study On The Abuse Regulation Of Standard Essential Patents

The “Patent Law” has undergone several revisions since its first implementation, regulations on patent abuse has never been clearly announced until the “Modification Draft of Patent Law ” released in April,2015.Undoubtedly,it is a great progress that the overall principle of “No patent right abuses”was set up by the mentioned draft.But in practical and judicial referee,such principled terms lack sufficient maneuverability for their conflicting standards.Secondly,the “Anti-monopoly Law” also has its limitation to regulate the abuse of standard essential patents(SEPs), because it requires specific premise but does not provide clear provisions of operation.In addition, the existing laws and regulations such as“Anti-unfair Competition Law”, “Contract Law” and “Foreign Trade Law” cannot effectively solve the negative impact of SEPs abuse,because they are more fragmented than united. This situation results in unnecessary resource consumption and also obstruction of scientific and technological innovation.For these reasons above, this paper researches SEPs abuse regulating from the perspective of right abuse, so as to explore effective solutions to this problem by comparative study of extraterritorial law system.The first chapter of this article goes straight to the interpretation of the concept of SEPs abuse. To determine the different manifestations of SEPs abuse according to its own characteristics,Chapter one explains the nature of SEPs abuse by case analysis,and sufficiently discusses some classical abuse types,such as ban abuse,license refusal, tying, unreasonable license fee,compulsory cross license, unreasonable additional trading conditions,during the discussion,the rule of reason applied in those abuse cognizance has been revalued.Considering a series of SEPs abuse disputes confronted by Chinese companies at home and abroad, the study of SEPs abuse regulation is of great necessity.Chapter two mainly discusses China’s legal system works on SEPs abuse regulating,and explores the deficiency of the legal system.This chapter firstly discusses five situations which named“Not to be considered as patent infringement”and further analyses the problems existing in the Chinese patent compulsory license.This chapter also introspects the reasons why the compulsory license has no functions in the practice. Secondly, this chapter particularly discusses the practical difficulties for patent abuse regulation of the 55 th article in “Anti-monopoly Law”. Lastly this chapter discusses some other laws and regulations which related to the regulation of patent abuse. Some general principles like good faith in “Civil Law”, business ethics of “Anti-unfair Competition Law”,administrative intervention of the “Foreign Trade Law”.The study shows that the existing law appears to be comprehensive, but it is too fragmented to play an effective role in regulating patent abuse.Chapter three focuses on the comparative study on extraterritorial law of the SEPs abuse regulation, it studies the American regulation named“Patent abuse defense”,the “Exemption principle” applied in European Union and the compulsory license of India, and also studies the administrative law enforcement and judicial referee of the United States, European Union and India, so as to explore some extraterritorial experiences in regulating SEPs abuse.Chapter four stresses on proposing suggestion about patent abuse regulation.Firstly,it recommends the adjustment of the “Patent Law” which specified in article 79. Secondly, this chapter suggests adding a "Patent abuse defense" clause in the “Patent Law”,in order to regulate the more common SEPs abuse.Thirdly,consummating the patent compulsory license system by specifying the judgment standard of "Full Implementation", and clearing the judgment conditions of "Necessary facilities", so as to regulate the grant of compulsory license based on the reason of “To eliminate or to reduce the negative impact of monopoly”.