The Balance Of Standard-essential Patent Regulation And Relief

In the era of knowledge economy, due to the constant improvement of density and complexity of patent, it is unavoidable to evade technology protected by patent while making many standards. The integration of standards and patents has become a trend, a new thing-- standard essential patent(SEP), emerges as the time require. In recent years, litigation around the SEP has occurred frequently, which has aroused people’s wide attention. The thesis will focus on the “hold-up” phenomenon,which is often occurred in SEP disputes. The author thinks that both patentee or executor own the view that the fundamental objective of “hold-up” is to control the licensing fee rates or exclude competition with the help of infringement relief of patent. In China, there are two patent infringement remedies, one is to stop the infringement, which can basically correspond to the permanent ban, another is damage compensation. Therefore, the text regards injunctive relief of SEP and damage compensation as analysis points, which aim at putting forward views about the limited application ban and reasonable compensation for damage. Besides, the thesis also makes answers to issues about how to fit in injunction and calculate the damage compensation.The full text is divided into four chapters. The first chapter “The ‘hold-up’ phenomenon in the SEP infringement dispute” is divided into three sections. The first section introduces the phenomenon of “patent hold-up” and “reverse hold-up”. The second section analyzes the manifestations of “hold-up” phenomenon with the help of corresponding cases. The third section focuses on the harm of “hold-up” phenomenon.The second chapter “The cause of ‘hold-up’ phenomenon and the difficult problem in the infringement relief” is divided into three sections. The first section analyzes the cause of “hold-up” and comes to the conclusion that different country own different attitudes towards whether SEP can fit in injunction or not.The second section and the third section focus on whether the injunction can be used, the relationship between injunction and damage compensation, and the problem about licensing fees in damage compensation.The third chapter “The equity of regulation and remedy under the promise of FRAND” is divided into three sections. The first section introduces the concept of balance of interests, determines the equity standard of regulation and remedy of SEP.The second section discusses the fitness of injunctive relief at home and abroad under the promise of FRAND.The third section discusses the calculation method of damage compensation at home and abroad under the promise of FRAND.This chapter mainly analyzes some typical cases, and summarizes the solutions in all these cases.The fourth chapter “The solutions of the problems and construction of related mechanism of China” is divided into two sections.The first section puts forward suggestions about the fitness of the injunction and the calculation of damage compensation of infringement relief of SEP, including taking licensing negotiation model that injunction is synchronous with anti-monopoly, making full use of compulsory licensing system, constructing collective management organizations of SEP setting relatively open mechanism of patent licensing fee rates, treat carefully about licensing fees and rates of SEP under the promise of FRAND. The second section puts forward an assumption that construct “hold-up” prevention mechanism, which includes ideas and methods of construction. Specific recommendations include taking consideration to the particularity of Chinese standard system and strengthening inter agency coordination and coordination, consummating advanced information disclosure of Standardization Organization, setting licensing negotiation deadline of SEP.