The Study Of Injunctive Rule To Standard Essential Patents

In the era of knowledge economy,global technology competition continues to follow the intellectual property strategy of ‘patenting of technology-patent standardization-standard licensing',a large number of patents and patent pools are included in the standard,the number of disputes arising from the standard essential patents is increasing,the ban rules are essential One of the difficult problems in patent disputes.At present,most of the standard essential patent disputes occur in Europe and the United States,these countries(organizations)have recognized the damages,bans and other claims for infringement is a patent law to give the patentee the right of the right of relief procedures,the exercise of the relief itself is the use of market dominance Status of the legitimate conduct,the standard essential patent holders can be based on the provisions of the patent law to obtain rights relief.However,based on the particularity of the standard essential patent,the standard requisite patent holder is more monopolistic to the market than the ordinary patentee,and the restrictions on the exercise of the relief right require additional restrictions.In some cases the patent holder some may constitute misuse of market dominance.Article 85 of the ‘Patent Law Amendment Draft' stipulates the implied licensing system of the standard and essential patent.Article 24,paragraph 2,of the Patent Law of the People's Republic of China provides the essential standard to stop the infringement.Permission to negotiate the parties to the fault,but both the patent law or forensic interpretation does not include international standards,the scope of application is limited,the parties to the fault of the identification has not been clear.Compared with Europe and the United States and other countries,China's judicial practice on the standard essential patent ban is very loose,does not meet our current standards in the development and participation in international competition in the position and status,nor is the long-term legal strategy.For the standard essential patent injustice relief rules,the European Court of Justice through Huawei v.ZTE case established the latest rules,the Member States in the recent case of the rules made a detailed and explain.Germany Mannheim District Court in the latest jurisprudence based on the grounds of anti-monopoly law to reject the standard essential patent holders of the ban request,the essential standard patentinfringement issued by the patent holder,the proposed written offer higher Of the requirements,to a certain extent,increased the standard essential patent holders in the licensing negotiations obligations.The United States court on the standard of the essential patent ban follows the general patent injunction of the four elements of the law,the US antitrust investigation of the administrative case on the basis of the four elements of the analysis,most of the patent that the express(statement)or implied(based on action)In the event of a rejection of the FRAND license,the release of the prohibition will be deemed appropriate relief.FRAND commitment is an important guiding principle,but it is not sufficient to effectively regulate the behavior of potential licensors.In the design of the ban rules,it is also essential to consider the procedural design of the essential patent licensing negotiations and other relevant factors of the ban.Patent law context,the standard essential patent banning rules should be considered first of all to consider the general patent infringement ban the promulgation of elements to prevent the standard essential patent bans abuse,based on the standard essential patents relative to the general patent higher market dominance,the US standard The essential patent ban one of the four elements of the rules of the law can be provided by other means of relief(such as monetary compensation)to make up for the loss,not easily issued a ban to make up for the loss of money,the ban on the promulgation of behavior supplemented by our reference The For the identification of the essential essentials of the patentee and the licensee,the obligations of the patentee and the tortfeasor in the licensing negotiation should be designed through the procedure of the negotiating procedure,drawing on the rules of the permit procedure established by the EU and the German courts.FRAND principles specific study both sides of goodwill or not.