Research On The Antitrust Regulation Of Standard Essential Patent

"Standard Essential patents"("SEP")belongs to the scope of intellectual property law,but now it is carried out by the anti-monopoly law because of SEP holders' abuse leading to the limitation and elimination of market competition.In 2017,China commerce ministry's anti-monopoly bureau publicly sought for opinions on“Anti-monopoly guidelines on abuse of intellectual property”,for making up for the anti-monopoly law legislation vacancy and providing guidance of law enforcement.In this article,through the typical case,there are three aspects,the judgement of SEP of dominant market position,the judgement of SEP abuse and the improvement of anti-monopoly legislation,putting forward legislative suggestions to provide a reference for the revision of the “Anti-monopoly guidelines on abuse of intellectual property”.The market dominance judgement of the SEP.At present,the academic circle still cannot achieve unification,most scholars advocate hold "Presumption",which means the SEP holders are directly determined or constructive to have dominant market position,while a small number of scholars argue "Judgement",namely,analyzing the specific case in combination of different situation to judge the case.In this article,it is believed that "Judgement" is more precise,more reasonable and more practical.The article 18 of“Anti-monopoly guidelines on abuse of intellectual property”is used to explain and suggestions are taken on it.The determination of the market domination behavior of the SEP abuse.At present there are four kinds of practice on typical abuse,respectively,unreasonable Decline License,nonperformance of duty of full disclosure,excessive pricing or discriminatory pricing which violate the principle of FRAND requirement,and abuse of right to ban.The institutions of United States and European Union compared with the existing system in our country are under discuss in this article to solve the following problems: the difficultly to determine the abuse,the lack of relevant legislation,and the low cost of violation of the SEP holders.The legislation of the anti-monopoly law of SEP.According to the situations and the problems in the practice and legislation in China,there are suggestions: adding detailed rules for“Anti-monopoly guidelines on abuse of intellectual property”in SEP rights abuse causing monopoly,filing the vacancy in the anti-monopoly law of SEP information disclosure obligations,establishing and improving the defense mechanism of SEP abuse behavior andthe supervision system of organization for standardization.