Study On Finding Behaviors Of Standard Essential Patents’ Oowners Abusing The Dominant Market Position

Experts in the field have paid more and more attention to the problem of SEPs especially since Huawei sued IDC. Many scholars have written articles to discuss the controversial issues of SEPs. Because of the specific characteristics of SEPs, there are some differences and difficulties in identifying the relevant market and dominant market position concerning with SEPs.In this regard, there are many things worth learning in the practices of European Commission in the cases concerned with SEPs for our law enforcement and judicial institutions.We cannot presume the person to have a dominant market position just because he owes SEPs. In addition to follow the basic analysis framework of the antitrust law, we should also consider the following factors:market power of the standard itself; competition between legal SEPs and real SEPs; competition constraint inside the standard system; competition constraint among the standard system; restriction from judicial practice. The behaviors of SEP’s owners abusing the dominant market position mainly are:charging extremely high royalty fees, abusing injunctions relief, implementing tie-in sales or imposing other unreasonable trading conditions without any justifiable causes. Behaviors of abusing SEPs’dominant position may harm competition in many ways:further strengthen the market dominant position; distort competition order in the downstream market; restrain potential competition and innovation;may cause license fees stacking; harm the interests of consumers. Thus the key to regulate these behaviors by antitrust law is to develop a series of criterion and reference factors. In order to provide a clear basis for law enforcement agencies and judicial institutions and guide operators to exercise intellectual property rights properly, we should build or improve some important procedural mechanism when necessary.Often cases of abusing intellectual property rights are very complicated, so not only sound legal norms are needed, but also a number of comprehensive talents to deal with the cases. In reality our current regulations on abuse of intellectual property rights to eliminate or restrict competition are inadequate. Although there are many ways to perfect the relative legal regulations, the most feasible way we think is to start drafting guidelines for antitrust enforcement over intellectual property on the basis of our antitrust practice and the mature experience of other countries and regions. The guidelines should clearly clarified the scope of the intellectual property rights which are applicable and deal with the relation of intellectual property protection and antitrust regulation of abusing intellectual property rights. In the guidelines we should not only make clear definition of important legal concepts, but also refine different types of abusing acts, including the relevant behaviors of horizontal antitrust agreements, vertical antitrust agreements and abuse of dominant market position concerning with intellectual properties, so that the guidelines can be more close to practice operation and the general practitioners can clearly understand and judge the legitimacy of behaviors related to intellectual properties under the antitrust regulations. Last but not the least, the case-guiding system in our country is also of great significance in anti-trust of intellectual property rights field, in the way of case opening to further provide guidance for other related cases.