Legal Regulation Research On Issues Arising From Abuse Of Standard Patent

Technical standards is a newly developed technology with a strong social and public management of property, while intellectual property is a private property rights with legal monopoly power, so the internal conflict between technical standardization and intellectual property is the existence of a conflict between public interest and private interests. An enterprise will increase market competition when its’ patent accepted into the technical standard in relevant field.The majority of companies that possess one or more standard patents is already the leading enterprises in it’s field while in practise. This may force the traders into passivity, even a market barrier. Therefore, how to balance the interests of all parties in the process of developing and implementing a standard patent is an important factor to ensure healthy development of the market.How to deal with the interest game between standard patentee and licencees is the key to solving the issues of patent standardization. The solution is to regulate patentees’ abusing and the behavior of patentees’ in the process of developing and implementing a standard patent. Based on this thinking, this text carried out comprehensive research on standardization patent issues from both international law and domestic law, public law and private law as well as contract law, patent law and anti-monopoly law. This article induces the commonness of standardization patent issues on the basis of case studied.This paper falls into four chapters:The first chapter "overview of technical standard and patent rights", this chapter introduces the basic theory of technical standards, analysis the reason of the combining of technical standard and patent, and introduces the patent abusing problem with the combining, divided standard patent abuse into standard-setting process and standards implementation process.The second chapter "relevant countries and international organizations regulate the abusing of standard patent ", introduced the main international organizations’ standard patent policy from international law and domestic law, and the European Union and United States regulation on standard patent abuse, and made a comparison.The third chapter "private law protection on standards patent abuse". This chapter discussed a solution of standard patent abuse in a vision of civil law, contract law and patent law. Part of the civil law stated that prohibition of abuse of powers principle is a basic principle of civil law, but the generality of the legal principles leads to its only a supplement to statute law, therefore it unable to serve as the main reason for regulation the standard patent abuse. Part of contract law analyzed the type of contracts involved in the process of standard patent, and analyzed standard-setting organizations’ patent policy in a contract law view, and made Microsoft v. Motorola as an example to introduce the practice of contract law applies to the standard patent abuse. Part of patent law introduced the route on standard patent abuse.The fourth chapter, "anti-monopoly law regulation of standard patent abuse", this chapter focuses on the anti-monopoly law regulation of patent standardization issues. This chapter analyzes the feasibility of anti-monopoly law regulation on patent standardization issues firstly, pointed out that in view of the goal congruence of antimonopoly law and patents and technical standards, and the flexible principle of antimonopoly law, anti-monopoly has the advantage on regulation of patent standardization issue. Then this chapter analyzed various problems which may be occurred in the standard-setting and standard implementation. This paper analyzes the common restrict competitive behavior that patentee may faced in the standard implementation, considered that compare with the United States and EU, the latter holds a more strict attitude on anti-monopoly law enforcement in standard patent issues.The fifth chapter "the practice on standard patent abuse in our country and the preliminary advice", this chapter analyses the law enforcement practice of abuse of standard patent in China, compared with other countries in legislation and practice, summed up referential preliminary advice.