Anti-monopoly Regulations For Injunctive Relief Of Standard Essential Patents

Standards are uniform rules for repetitive things that are public and universally applicable.When technical solutions are incorporated into the standards,technical standards are formed.As people's awareness of intellectual property protection increases,a large number of technologies are patented,while standards require high-level technology to maintain advancement,and patentees want to expand the use of patents by broad applicability of standards to get more profits,so the integration of standards and patents is becoming more common.The patents that are included in the standard and are essential for the implementation of the standard are Standard Essential Patents(SEP).Injunctive relief is a means of protecting rights.Injunctive relief of Standard Essential Patents means that when the patent rights of a SEP holder are violated,the court is requested to issue an injunction to stop the other parties from engaging in infringement.At present,there are three views on whether injunction can be applied to the SEP: complete restrictions on injunction,no restrictions on injunction,and conditional application of injunction.The third view is preferable.Based on the necessity of rights protection,protection of innovation incentives and curbing reverse holdup,the SEP injunction claims have the legitimacy.However,since the SEP holders are very likely to abuse the injunctive relief and at the same time make a FRAND license commitment,the application of injunction should be limited.In view of the complexity of SEP,the paths of regulating SEP injunctive relief have not been unified.The US adopts the patent law path and the contract law path,and explores the applicability of the antitrust law.The EU adopts the patent law and the antitrust law paths.By analyzing the regulatory paths of the US and the EU,it can be found that they both advocate the conditional application of injunctive relief and attach importance to the application of the antitrust law on this issue.Abuse of SEP injunctive relief will damage market competition and the interests of consumers,so the antitrust law has the rationality of intervention.Since the contract law and patent law paths are defective,and the antitrust law can provide an analytical framework for monopolistic behaviors and flexible forms of responsibility and means,and has superiority in regulating the abuse of SEP injunctive relief,it's necessary for antitrust law to regulate the abuse of SEP injunctive relief.The antitrust law should follow the principles of balance of interests,appropriate intervention and reasonableness in regulating this issue.The specificity of SEP should be considered when regulating the abuse of SEP injunction under the framework of abuse of market dominance.To determine whether a SEP holder has a dominant market position,the theory of “confirmation” should be adopted.Judging whether a SEP holder with market dominance constitutes abuse of dominant market position,it is necessary to combine the subjective state of the two parties and the performance in the negotiation and the influences of injunction on innovation and market competition.China adopts patent law and antitrust law paths to regulate SEP injunctive relief,but the relevant provisions of the antitrust framework are not perfect.The Anti-Monopoly Law and the SAIC Regulations do not directly address the issue of SEP injunction.There are provisions in the consultation paper,but they are lack of negotiation guidelines,standards of judging "willing" and FRAND principles,which result in lack of maneuverability.In the case of Huawei v.ZTE,the European Court of Justice set up a negotiation mechanism for both parties and followed the principle of balance of interests,which provided guidance for China to improve the rules of regulating SEP injunctive relief under the anti-monopoly framework.The idea of perfecting China's anti-monopoly regulations on SEP injunctive relief is to construct a negotiation mechanism that balances the rights and obligations between patent holders and patent implementers and integrate FRAND principles into the negotiation mechanism.The specific rules should provide the SEP holder's obligations of notification and offer,and the patent executor's obligations of timely reply and counter-offer and guarantee to establish the pre-litigation negotiation mechanism.If the negotiation fails,it can be decided by a third party.If the SEP holder insists on prosecuting to seek injunction,after determining that the SEP holder has a dominant market position,the court should consider the performance of the two parties in the negotiation,the subjective state which is judged according to the performance of the procedural obligations of concluding contract and the influences of the injunctive relief on market competition and innovation to judge whether it constitutes abuse of dominant market position.