Reverse Hold-up In Technical Standards And Its Legal Regulation

In recent years,the cases of Qualcomm v.Meizuin China,Huawei v.ZTE in German,Apple v.Qualcomm in U.S.and Apple v.Samsung in Japan involving the disputes about standard essential patent havea significant impactin the global market,which have aroused widespread concern of academia and practitionersat home and abroad.The emergence of these disputes shows that hijacking has not only been used by the patentee who obtain the dominant position to seize excessive royalties onstandard implementers,but also includes that standard implementers strategically use the FRAND principle to lower the patent license fee,which is called patent reverse hijacking.And with the development of standard essential patent technology,patent reverse hijacking behavior will causeserious obstacles to the promotion of technical standards and the healthy development of competitive markets.In view of this,it is necessary to analyze the formation mechanism and concrete manifestation of patent reverse hijacking in technical standardization,and clarify that patent reverse hijacking is essentially patent infringement,but its remedies are special.Secondly,through the regulation of China's "Standardization Law","Patent Law" and other legal and judicial practice of patent reverse hijacking behavior of the regulation of the status,to find the problems and shortcomings in China's legislative and judicial aspects.And then compare and analyze the legislative and judicial practice of foreign countries.At present,the injunction on patent reverse hijacking is based on public interest considerations,but there are differences in specific legislation and application procedures;the determination of the amount of specific damages is mainly based on the technicalallocation rules and comparable license agreements,all of which provide a reference about how to regulate patent reverse hijacking for China.In the end,China must adhere to the principle of honesty and credit,perfect the lack of legislation to achieve the parties to the two sides of the information roughly symmetry;the judicial relief on the patent reverse hijacking behavior requires a reasonable application of the ban,while uses the appropriate calculation methods to determine the infringement damages.