Research On Anti-monopoly Regulation Of Patent Hold-up In Technical Standards

As a hotspot and sensitive area where intellectual property law and anti-monopoly law cross,the anti-monopoly regulation of patent hold-up in technical standards is a theoretically worthwhile issue that is very urgent in practice.Although a considerable number of articles have been devoted to this issue in the field of economic law in China,it is far from being able to go deep.In order to promote the discussion of this issue,this paper attempts to discuss the issue of anti-monopoly regulation of patent hold-up in technical standards from the perspective of theory and practice.In addition to the abstract,introduction,and conclusion,the text is divided into five parts.The first part mainly introduces the basic concepts,characteristics and legal attributes of patent hold-up in technical standards."hold-up" is an opportunism in economics.After patents were included in the standard,patent hold-up represented the holders of standard essential patents taking advantage of the lock-in effect of necessary patents to obtain high license fees or other unreasonable conditions.The patent hold-up in technical standards is characterized by: the subject of the act is the holder of the standard essential patent;the proposition is the post factum after the patent has been included in the standard;the behavioral means is the threat of injunction or patent infringement;the purpose of the act is to obtain High license fees or other unreasonable conditions.The hold-up behavior in technical standards will be regulated by different laws.Its legal nature is a kind of abuse of patent rights and it is also a kind of monopolistic behavior.The second part mainly explains the necessity and feasibility of regulating the patent hold-up in technical standards.Its necessity is that the act of patent hold-up in technical standards is very likely to have the effect of excluding and restricting competition,and it will have a negative impact on consumer welfare and innovation.The limitations of the traditional civil and commercial law,the anti-unfair competition regulation system and the patent policy restriction of the standard-setting organization have led to a large number of patent hold-up cases entering anti-monopoly enforcement and justice.Its feasibility lies in: Anti-monopoly law to maintain market competition as a value goal.Relatively sound anti-monopoly legislation provides a legal basis.Moreover,at home and abroad,trials of patent hold-up have accumulated a great deal of valuable practical experience for reference.The third part mainly summarizes the manifestations of patent hold-up in technical standards.In the formulation stage of technical standards,patent hold-up is a violation of patent disclosure obligations and false promises.During the implementation stage of the technical standards,patent hold-up is manifested in the fact that the standard-essential patentee violates the F/RAND principle and implements licensing to the standard,such as refusing permission,unfairly high prices,price discrimination,tying,and other unreasonable conditions.Improperly seeking injunctive relief.The fourth part mainly analyzes the problem of the anti-monopoly regulation of patent hold-up in technical standards.It mainly follows how to define the relevant market,whether it occupies the dominant market position in the relevant market,and whether it constitutes an anti-monopoly analysis step that abuses the dominant market position.Whether or not a standard essential patent constitutes an independent related market depends on the situation.The determination of the dominating position of the standard-essential patent right holder in the relevant market must be analyzed in conjunction with specific cases,and should be based on the determination of whether it constitutes the abuse of market dominance.Rational analysis of specific principles.The fifth part mainly analyzes the problem of anti-monopoly regulation of patent hold-up in China's technical standards and the suggestions for improvement.The biggest reality in our country is "actually and without name." The patent hold-up of anti-monopoly regulation legislation should be improved,the review system for necessary patents should be improved,and the prior permission negotiation system should be introduced to strengthen the practice of patent hold-up of anti-monopoly regulations.