Recognition Of Dominant Position For Standard Essential Patents

When analyzing dominant position for standard-essential patents(SEP),most domestic theories and practices are based on the definition of standardessential patents and the patent-holdup theory.By definition,there is no alternative or substitute for each SEP.Therefore,each SEP constitutes a separate relevant technology market on its own.It is also presumed that the standardessential patent owners has a 100% market share in the relevant market,and thus the patent owners possess monopoly power.There are restrictions and limitations with this view.First of all,different standard-setting organizations adopted different criteria to evaluate whether a specific patent could be incorporated in a certain standard.Therefore,it is controversial whether SEPs are always necessary and cannot be avoided.Also,it is doubtable whether or not all patent holder could rely on the standard to obtain the market position.Secondly,standards as well as SEPs are in dynamic adjustment,since,in order to analyze relevant market for SEP,competition among different standards,the replacement of patents,and the competition between standard and non-standard patents should be included.Moreover,the patent-holdup and royalty stacking are the theoretical basis for competition authorities to limit standard-essential patentee's power.However,such two theories have not yet been supported by empirical data.On the contrary,the increasing disputes in practice over patent infringement verify the patent antihijacking theory.Consequently,when analyzing relevant market,governmental authorities should not focus too heavily on the so-called unilateral hold-up problem and ignored what fuels dynamic innovation and efficiency.Secondly,the mere ownership of a SEP does not in itself equate to dominance,instead,multi-dimensional comprehensive measures should be taken into account.This article consists of five chapters.The first chapter starts with five domestic cases of the abuse of market ascendancy in relation to SEP.In the beginning,it analyzes the similarities and differences of the definition of relevant markets and the determination of the dominant market position between three Chinese antitrust authorities.In addition,combined with patent anti-hijacking theory,the focus of recently SEP disputes has been shifted from abuse of market dominance to patent infringement litigation,which reflects some issues that competition authorities have misapplied antitrust law and created an imbalance in the standard-setting process that unduly favors implementers at the risk of undermining innovation.In response to the above questions,the second chapter starts with the characteristics and basic concepts of the SEPs and lays the theoretical foundation for the following analysis.Specifically,whether SEPs are necessary;whether all standard-setting organizations will confer monopoly power on patent owners;whether or not relevant market should include technology market,innovative markets,etc.;and based on the current development of patent anti-hijacking theory,whether antitrust authorities should change the policy accordingly.The third part,from the perspective of comparative law,studies the schedule choices and historical evolution of the European Commission and US cases.Both evolution shows a transformation from static analysis to dynamic analysis.However,the apparent difference is that the European Commission focuses more on analyzing alternative technologies,while US courts focus on the plaintiff's burden of proof and the adverse consequences.This chapter concludes with an analysis of the path selection in Chinese relevant cases and a comparative analysis with foreign cases.The preliminary conclusion is that since there is a possibility of substitutability of SEP,it is necessary to abandon past static analysis and transform into dynamic analysis.The fourth chapter pertains to the determination of dominance position for SEPs.It focuses on whether the standard essential patentee have a dominant market position,by comparing five foreign cases and five Chinese cases.Importantly,the European Commission clearly stated that the mere ownership of a SEP does not in itself equate to dominance.The fifth part is on the basis of the foregoing,proposes some suggestions for analyzing the market dominance of SEPs in China.Firstly,antitrust authorities should realize the development of patent-holdup theory and patent antihijacking theory;the comparison of the remedies and bargaining power between patent owners and patent implementers.Therefore,antitrust authorities should not interfere with patent permission excessively only due to traditional patent-holdup theory,and this would impair the incentive for innovation.Secondly,by referring to such foreign cases,the alternative analysis and market position evaluation should be measured rather than merely based on shallow parsing.