Research Of Necessary Patent Infringement Risk Of Chinese Enterprises' Overseas Investment Standards

In March 2015,the National Development and Reform Commission,Ministry of Foreign Affairs and Ministry of Commerce jointly issued Vision and Action for Promoting the Joint Construction of the Silk Road Economic Belt and the 21 st Century Maritime Silk Road,in which it clearly proposed to promote the construction of communication network and expand the communication and cooperation of information to build the Information Silk Road.In 2014,Xiaomi Company(hereinafter referred to as “Xiaomi”)was sued in India for its product infringement of standard-essential patents owned by Ericsson.Ericsson filed a temporary injunction with the court to prohibit the production and sale of the products involved in India.Finally the injunction was eventually supported by the court.This case has seriously affected Xiaomi's further investment in Indian market.As China's telecommunication industry has stepped up its pace of going global,China's other telecommunication companies have frequently suffered infringement lawsuits similar to the case of Xiaomi.In the era when intellectual property plays an important role in national strategy,Standard-essential patent litigation has increasingly become a setback on the overseas investment way of China's telecommunication company.Taking the case of Xiaomi as a starting point,the author tries to analyse the background and legal value of standard essential patent and FRAND principles.By probing into the risk of the infringement of the standard essential patent,the author wants to provide Chinese companies with measures to prevent the risk of the infringement of the standard essential patents on their overseas investment way.The article is divided into four parts.In the first part,the author introduces the general information of Ericsson v.Xiaomi case.On December5 th,2014,Ericsson filed a lawsuit to the High Court of New Delhi,India,stating that Xiaomi infringed on its 8 standard-essential patents and sought atemporary injunction.On December 8th,the ban was supported by the court.Then the court ordered the defendant to pay punitive damages.The parties repeatedly appealed and the case is still pending.In the second part,the author analyzes the related issues about the standard essential patent.She starts the analysis with the notion of standard essential patent and FRAND principles,the background,the systematic sense,the legal value,the consideration of the injunction and the origin of the case.And by knowing and analyzing the establishment of relevant systems for standard essential patents,the author grasps the close relationship between the standard essential patents and the FRAND principles,which lays a foundation for the following discussion on the assessment of the infringement risk for Chinese enterprises' extraterritorial investments.In the third part,the author analyzes the risk of the infringement of standard essential patent on Chinese enterprises' overseas investment way.She discusses it from two aspects.On the one hand,the risks caused by Chinese enterprises' internal cause: 1.Weak legal consciousness of intellectual;2.Lack of the capacity for independent;3.Negative attitudes towards intellectual property rights lawsuit abroad;4.Lack of experience on the protection of its oversea intellectual property.On the other hand,the risks caused by external causes: 1.Differences between Chinese and foreign legal regulations;2.The wide layout of the patent of European and American traditional enterprises;3.The litigation initiated by European and American traditional companies through abusing their monopoly status.In the fourth part,by drawing lessons from the experiences of some countries where intellectual property strengthens the country and combining with China's own situation,the author puts forward the precautionary measures against the risks of standard essential patent infringement on their oversea investment way.In the government's view: 1.The government should assist enterprises to apply for intellectual property rights;2.Establish and improve early warning and emergency mechanisms for the protection ofoverseas intellectual property;3.Strengthen the cooperation on intellectual property with other governments and international organizations.In the enterprises' view: 1.Increase the investment in achievements of innovation intellectual property;2.Actively carry out the patent's layout;3.Grasp the differences between Chinese and foreign laws,choose a reasonable response strategy;4.Seek anti-monopoly rule relief.