Regulation Of Anti-monopoly Law On The Abuse Of Standard Essential Patents

In the process of standardization, the combination of patent and technical standard is inevitable, and the concept of standard essential patents arises at the historic moment. Technical standard has obvious network externality, which provides the standard essential patent holders a huge market power. It is easy for standard essential patents to take advantage of their dominant position to refuse to license, raise price or tying, etc. in the standard essential patent license.These actions are all illegal monopoly, and the antitrust regulation of standard essential patents abuse has formed a universal consensus in the world. The case of Huawei.v. Interdigital,officially opened the anti-monopoly regulation practice of our country’s standard essential patent rights abuse.However, due to the imperfection of legislation and the complexity of standard essential patents, there are some defects in China’s anti-monopoly law regulation practice. Based on the practice of our country, learning from foreign experience, it is the proper meaning of the promotion of anti-monopoly law to improve the anti-monopoly law regulation on the abuse of standard essential patents in China.Besides the introduction and conclusion, this paper includes five parts:The first part is the introduction of the abuse of standard essential patents. Starting from the analysis of the concept of standard essential patent, this concept is interpreted by two elements of the patent right and technical standard, and the the particularities of standard essential patents are explored. It is the existence of these special natures that provide opportunities for standard essential patents rights to abuse power and implement some behaviors which damage to the licensee. These behaviors are harmful to the market competition and consumers welfare, violate the anti-monopoly law legal interests, and should be included in the anti-monopoly law category.The second part concentrates on the analysis of the general idea of the antitrust law regulation on the abuse of standard essential patents in our country. On the basis of practical cases, we mainly analyze the scope of the coincidence of the abuse of standard essential patents and the abuse of dominant market position. In accordance with general analysis path of abuse of dominant market position, the performance of standard essential patents abuse to be re-interpreted, and the special attention is paid on the study of three kinds of illegal monopoly behaviors, refusal to license, charged high licensing fee and tying. In the analysis, we not only consider general elements of illegal monopoly, but also focus on the special requirements of standard essential patents.The third part summarizes the deficiencies of standard essential patents abuse antitrust regulation and explores their roots. In our country,the deficiency of anti-monopoly law regulation embodies in three aspects: the excessive expansion of standard essential patents, the analysis of the dominant market position is too simple and the licensing fee is judged too principle. Investigating the root cause, it lies in the imperfection of legislation, the complexity of relevant market on standard essential patents,and the fuzziness of connotation of FRAND principle. These are also the key to the further improvement of the abuse of standard essential patents in our country.The fourth part focuses on foreign country, and we analyze the legislation, judicial and law enforcement experience of the United States and the European Union. The analysis in this part is from general to specific. That is, by combing the two major economic entities’ the general provisions of the intellectual property abuse anti-monopoly law regulation, the specific application in standard essential patents abuse is further analyzed. It’s the definition of dominant market position on American standard essential patents and the identification of FRAND licensing fees that has important significance to our country; And the European Union’s restriction of injunctive relief can offer important references to China’s injunction on further improvement. Foreign experience also reveals that China should pay attention to knowledge innovation, and grasp the initiative to formulate standards.The fifth part responds for the root of the defects of standard essential patents abuse antitrust regulation. Aiming at the defects of the legislation, and after the synthetical analysis of all kinds of realistic conditions, the author advocates that in the formal introduction of the "the Anti Monopoly Committee of the State Council on the abuse of intellectual property rights" to the related issues of standards essential patents to be more clearly defined. And in view of the complexity of relevant market on standard essential patents, relevant authorities should comprehensively analyze the specific situations of standard essential patents in the relevant market definition. As for the licensing fee, it relies on the refinement in the application of FRAND principle to be solved from the root. In addition, the public attribute of the standard essential patents also affect the use of the patentees’ injunctive relief, which also needs specific provision.