Anti-monopoly Regulation Research On The Standard Essential Patent Injunctive Relief Abuse

There is no technical problems existing in the combination of the standard and patents.Besides,the combination is advantageous in keeping the standard in the best and newer condition.However,the patent is a monopoly ruled by law,and it entitles patentees to some market forces.Not only does the standard have network effects and locking effects,to some degree,it is compulsory as well.The combination of the standard and patents,in fact,entitles standard essential patentees to great market forces.The injunctive remedy right is a ffunction of the property right.It means when someone’s property right is infringed,he is entitled to ask for judicatory helps.The patent right is a intangible property right.Therefore,it has the injunctive relief right,so does the standard patent.However,during the research and exploitation period,standard essential patentees invest tremendous human and other resources and take a great risk.After a patent right is granted,based on egoism,patentees tend to implement "repayment strategy" and "containment strategy" so as to maximize the interests.With the great market forces,standard patentees will take various means to recover costs and gain preferred profits.If the legal means of the standard essential patent right cannot meet the expected goal,patentees will abuse the means of standard essential patent right,including injunctive remedy means.At the primary stage of legal regulation on standard essential patentees’ abuse of injunctive remedy means,it was regulated by the civil law.However,the effect was no ideal,and the behavior did harm to the other party,the consumer and even the whole society.Considering the ineffectiveness of the civil law and the effect of the whole society,the regulation on injunctive remedy means started to move to the anti-monopoly law.In Germany and the European Union,when regulating standard essential patentees,abuse of injunctive remedy means,anti-monopoly can be the plea.In China’s judicial practice,Huawei v.IDC company is of great significance,forit brought in a regulatory approach based on the anti-monopoly law.In this case,the court found IDC’s behaviors,for example using injunctive remedy means,were an abuse of dominance of the market.However,the court neither gave a clear and convincing definition of IDC’s relevant market of the standard essential patent,nor put forward the factors to define the abuse of injunctive remedy means.China’s relevant laws and regulations have a rough terms for the standard essential patent injunctive remedy,in that this paper focuses on the antitrust regulation research of the standard essential patent injunctive remedy abuses,with a view to put forward advices for the future legislation and judicial practice to deal with itThis paper is mainly divided into four parts.In the first part,the paper from the definition of the relevant concepts and the problems encountered in practice,gradually lead to the anti-monopoly dilemma of the standard essential patent injunction abuse.In the second part,on the analysis of the standard essential patent injunctive relief behavior and the related research paradigm of antitrust law,the paper will put forward a feasible path under the existing legal framework to regulate the standard essential patent injunctive remedy.In the third part,by means of introducing and analyzing the extraterritorial experiences of the standard essential patent injunctive relief regulations,the paper will proposes some available lessons and experiences for China.The fourth part returns to Chinese perspective,and tries to put forward the perfect suggestions for the anti-monopoly regulation of the standard essential patent injunctive remedy abuse.This part consists of three small fractions.This part takes three respectively different point of views to complete the anti-monopoly regulation system for Chinese standard essential patent injunctive remedy abuse.These views,generally concrete speaking,include standard setting organizations to optimize their IP policies and unfold policies,the antitrust commission and the anti-monopoly law enforcement agencies to improve their anti-monopoly guidelines about the intellectual property rights,to introduce the anti-monopoly law enforcement officers as experts into the courts to help the judges handle the cases,to establish a regime in effectively coordinating the management between the anti-monopoly law enforcement agencies and the courts,and to unify the standard essential patent licensing contract registration system and so on.By these measures,we can perfect the anti-monopoly regulation system for the standard essential patent injunctive relief abuse.