A Study On The Implied License Of Standards Essential Patents In China

"The Fourth Amendment Draft of Patent Law(Munuscript)"provides the Standard Essential Patent Implied Licensing System.On the one hand,it s for the balance between the patentee and the standard implementers of the interests,on the other hand,it provides a judicial basis for the patent infringement litigation.More importantly,it has played an important role for the patent system Development.The legal basis of the patent implied license is the " Principle of Estoppel",the theoretical source is the patent implied license theory.The development of the Standard Essential Patent Implied Licensing System of China is later than the European and American countries.it's the first time to use the patent implied license theory to resolve patent infringement disputes in the fourth reply letter about a civil case in 2008.After that,the Patent Information Disclosure System was writted to " Standards relating to the Patent Management Regulations of the state(provisional)",and then "The Fourth Amendment Draft of Patent Law(Munuscript)" provides the Standard Essential Patent Implied Licensing System,the three of above have a strong link.The establishment of the Standard Essential Patent System is of great significance to the development of our patent system.There are two main situations about the Standard Essential Patent Implied Licensing System.One is The Implied License caused by the breach of a mandatory disclosure obligation.The other one is made of the breach of the "fair,reasonable,non-discriminatory" principle.We should pay attention to two issues about the Standard Essential Patents Implied Licensing System,one is to identify it,the other is to pay a reasonable price to Patentee.How to identify the the Standard Essential Patent Implied License can be analyzed from three aspects,respectively are the formal requirements,substantive elements and procedural requirements.The Standard Essential Patent Implied Licensing System tends to protect the interests of standard implementers,but some restrictive conditions may preclude the application of the standard requisite patent implied license.How to ascertain a reasonable fee for use should be based on a number of considerations.At the same time,some of the existing principles of the use of technology are useful to determination of use fee.