On Limits Of Injunctive Relief For Standard Essential Patents

Since the development of the world entered the era of knowledge economy,the process of technology standardization has become more and more accelerated.Many patented technologies have also been incorporated into various standards,resulting in standard essential patents.However,there are natural conflicts between the openness,publicity,and compulsory attributes of the standard and the exclusivity of patents.The patent law gives the patentee the right to seek injunction for help when the patent is infringed,but in the field of standard essential patents,the exercise of the right may constitute abuse of market dominance,undermine the balance of interests,and violate the public interest.Therefore,it must be limited.The standard essential patentee shall.at the request of the standardization organization,usually make a fair,reasonable and non-discriminatory licensing commitment(referred to as"FRAND Commitment")for the necessary patents owned,which is to limit the injunctive relief rights of the standard essential patentee.An important basis.The construction of China’s standard essential patent ban system needs to learn from the international advanced experience and find a suitable regulatory path.Among them.the basic attitude and regulatory perspective of the United States and the European Union on the issue of patent bans are different.The promulgation of the US patent ban is mainly based on the "four-element test method"established in the"eBay case"using the principle of equity,and the application of the patent ban is more restrictive;in the traditional concept of the civil law system.the previous patent infringement is common.Adopting the "Stop Violation Theory",and gradually introduced the anti-monopoly defense into patent litigation.which was used as the main basis for refusing to issue the ban.In the field of standard essential patent bans,both the United States and the European Uinioin continue to adjust policies in the long-term practice to achieve a balance of interests.Among them.the European Court of Justice in the "Huawei v.ZTE case"advance ruling on the allocation of FRAND obligations between the standard essential patentee and the standard implementer is the most detailed,which can provide some reference for the construction of China’s standard necessary patent prohibition rules.Legislation related to standard essential patents in China is already underway,but its provisions are scattered in various legal documents,which are not systematic and the rules are not comprehensive enough.Among them,the most detailed and reasonable stipulations on the standard necessary patent ban should be the "Guidelines for the Determination of Patent Infringement(2017)" issued by the Beijing Higher People’s Court.This guide has considerable reference value for the trial of the standard necessary patent bans in various courts,but there are also some problems.On the one hand,the guide’s review of the fault of both parties begins with a written infringement warning issued by the standard essential patentee,which is irritating to the unreasonable distribution of the obligations of both parties and over-protection of the standard implementer;on the other hand,the guide does not make a FRAND commitment.The standard necessary patentee ban,especially if the standard essential patentee does not participate in the standard setting,is not regulated,leaving a blank for judicial application.In this regard,the paper puts forward the following insights:For the first point.the starting point of the obligation in the negotiation of standard essential patent licenses and rights protection should be changed to the standard.The implementer should disclose the willingness to negotiate to the standard necessary patent holder before implementing the patent.For the second point,it should be classified and discussed.The standard essential patentee does not participate in the standard formulation.If it does not implement the standard itself,it refers to the US"Four-Element Test Method".As it does not cause irreparable damage to the patentee.And the monetary compensation is enough to make up for the loss,so the ban is not applicable;if the patent is implemented by itself,it should be allowed to appeal to the standardization organization in order to replace or delete the necessary part of the patent in an alternative scheme,and the exercise of the ban is invoked.Article 26 of the Judicial Interpretation of the Patent Law(2)determines whether the ban is applicable based on considerations of national interests and public interests.