Research On Implied Lisence System Of Stand Essential Patents

In order to promote the integration of standard and patent and achieve the interests balance between the patentee and standard implementer,the non-disclosure of standard essential patent(SEP)is deemed as implied license had been added as the 85th clause of China Patent Law 4th revision draft,which led to a heat disscusion in law and bussiness circle.This clause deems the non-disclosure of SEP as implied license,which is actually the same as the provision of legal license system of patent.This is likely to be against with that unauthorized patent must be licensed case by case under the TRIPS agreement,and not conform to the actual situation of patent information disclosure.The internationally accepted practice is to be resolved by the FRAND principle shared by the international standardization organization,without special legislation to balance the interests between the patentee and the standard implementer.Patent law should be adhered to the protection of patent right to prevent the malposition of patent law and competition law,etc.The lack of guarantee of patent rights will lead to increased risk of enterprise R&D investment and inhibition of enterprise technology innovation investment.It is to the disadvantage of the regulation of emerging industry development.Furthermore,it also may restrict enterprise competitiveness with foreign capital enterprise in the domestic market.Besides,it will decrease duty of patent law to protect patent right and promote the technology innovation.This paper explains some concepts and characteristics about the related standard of SEP implied license system,patent standardlization and SEP,and analyzes the relationship among patent,standard and implied license system.Besides,it elaborats FRAND principle of "fair,reasonable and non-discriminatory" at abroad and the current situation and existing risk of SEP implied license at home.It also analyzes the risk from the point of law enforcement,standards and technology innovation,taking fuel cell national standards as example.The paper analyzes the conflict between patent exclusive rights and public right after patent technology standardization,patent exclusive rights and FRAND permission.It put forward that information disclosure obligation and information disclosure degree should be stipulated during patent standardization process to coordinate the conflict of patent standardization and patent monopoly;At the same time,three suggestions are put forward to perfect SEP implied license that the scope of the SEP,information disclosure obligations and related responsibilities and fee payment mode should be normed.No matter from the world or the current stage of our country,implied license of SEP should be treated scientificly,comprehensively and discreetly.It is suggested that the 85th clause should be modified and perfected on the base of fully consideration of reality that the benefit of SEP is extensive and complex.The rationality of non-disclosure of SEP should take the principle of case by case judgement.