Research On Implied Licensing System Of Standard Essential Patent In China

A patent is a monopoly of private property rights,and the standard is a universal public resource.The two are contradictory relationships.With the continuous development of science and technology,patents and standards are inevitably combined to form standard essential patents.In order to ensure the smooth implementation of the standard,the standards development organization will require the patentee who participates in the standardization to disclose its patent.However,in the process of standard setting,some patent holders do not disclose the necessary patents they own in order to maximize the interests.After the standard promotion and implementation,they claim that their patents have been infringed,and “hold” the standard essential patent implementers.This has seriously affected the implementation of the standard,resulting in an unbalanced interest of the standard necessary patentee and the standard implementer.Resolving the contradictions between the two to achieve the balance of interests of all parties has become an urgent problem to be solved.In recent years,the number of litigation cases triggered by standard essential patents in China has been increasing.Due to the lack of clear legal basis,the long-standing existence of standard necessary patent implied license judgments in judicial practice is inconsistent.Although the Supreme People's Court responded by means of replies,guiding cases and judicial interpretations,it is only for cases and does not have universal applicability.In the revision of the Patent Law,China proposes to establish a system of implied licenses for standard essential patents,with a view to providing a corresponding legal basis for judicial trials,and balancing the interests between patent holders and standard implementers through effective linkage with relevant standard patent policies.The smooth implementation of the standard.This paper comprehensively analyzes the current judicial status and existing problems of implied licenses for standard essential patents in China by means of literature analysis and case analysis.The information disclosure obligations of standard essential patent holders,the implied conditions of implied licenses for standard essential patents,and injunctive relief The restrictive application and the reasonable calculation of the patent license fee propose the path of constructing the implied license for the standard patents in China.As a statute country,in the case of more and more implied licensing disputes involving standard essential patents in judicial practice,it is imperative to construct a standard implied license implied license system that can be effectively applied in judicial practice.It is imperative to provide clear rules and guidelines for judicial practice.