Research On Essential Patent Right Limit Of Communication Technology Standard

Technology standard has a certain compulsory requirement or guidance function,and contains detailed technical requirements and related technical proposal documents,the purpose is to allow related products or services to meet certain security requirements or market access conditions,with public interest property.Patent is one of objects of intellectual property,as a exclusive right of creative intellectual achievement that the competent national authorities grant to inventor or designer in accordance with law,which is a kind of private right.The patent right has exclusive,regional and time-bound characters,and the technical standard has universal,mature,use uncompensated use and widespread use characters.With the development of technology,there is no ready general-purpose technology can be collected when formulating technical standards in the field of new and high technology.And high-tech inventors and improvers have strong consciousness of intellectual property protection,their technological achievements have been almost completely in patent coverage,so the standardization bodies in this area have no choice to negotiate with patent holders and collect their patented technology as standards.At the same time,patent holders also hope to promote the patent technology with the help of standard to seek greater benefits.In this way,the integration of patent standardization and standard patent has deepened.And the most representative industry is the information communication,the nature of communication requirement requires interoperability and must be achieved in the same standard.And information communication industry,as a typical high technology industry,is composed by a variety of high-tech has been applied for patent protection,the above two major characteristics have made communication industry as the disaster area that a standard essential patent abuse.According to statistics,if an intelligent mobile phone on the market unilaterally pay patent fees,it will occupy 30% of the cost,which is extremely unfavorable to the industry development.Most emerging enterprises have chosen a large number of infringement to manage survive.While with the strengthening of TRIPs agreement and other global intellectual property protections,this kind of emerging enterprises are vulnerable to stuck into overseas intellectual property litigation,and its development is obviously impeded.How to achieve high integration between communication industry patents and standards,the combination of global intellectual property protection and of international trade,under the background of administrative led standardization formulation and management system,China will explore measures to perfect standard essential patent right limit in order to achieve a new balance of interests.This paper first explains the current situation of communication industry standards and patent fusion,points out that the standardization organization try to make its established standards with higher technology to better serve the public interest,widely integrate the high technology into the standard,forming a large number of standard essential patents.The formation of standard essential patents is "reasonable extension" to original patents,and patents owners abuse standard essential patents to obtain monopoly interests,revealing the practical necessity of limiting standard essential patents rights.Then the paper analyze the current restriction system from the generation of power,the exercise and relief,puts forward that the current system in our country needs to improve because of too general and weak practical characters.Finally this paper puts forward the thinking of improving the standard essential patent system of our country,we formulate theoretical basis for limiting system and three principles,and put forward suggestions for improvement in the implementation of licensing system and the use of improving legislation and stopping infringement,in accordance with three principles.