The Analysis On Granting Injunction For Standard Essential Patent Infringement

With the rise and development of technical standards,the infringement and licensing disputes regarding standard essential patents(SEPs)have grown in significance over the past decade.Coverages by standard results in patentees’ greater market power,which causes severe “hold-up” and may also arise potential anti-trust concern.In order to avoid "hold-up”,requirements of disclosure and FRAND obligations arise.Courts also limit the grant of injunctions on SEPs,at least to some extent.Injunctions are generally disfavored in the United States,because of the difficulty of proving irreparable injury and inadequate legal remedy.The European Court of Justice rebuilt the “anti-trust defense" by Huawei v.ZTE,and set the rights and obligations of both parties during good-faith negotiations.Drawing lessons from both U.S.and EU’s judicial practices and considering the unique problems in domestic industry,China established its own rules on mandatory disclosure and fault-based test in FRAND obligations.However,most rules are only suitable for recommendatory standards.The rules regarding national mandatory standards and de facto standard are absent.This article suggests different approaches to regulate three categories of SEPs.SEPs in mandatory standards may be treated as normal patent and general rules of patent law apply.Current rules regarding SEPs in recommendatory standards are reasonable,but the civil procedure can play a better role in bond posting,and multiple factors shall be considered when evaluating faults.SEP holders of de facto standards may comply with the anti-trust law,prevented from abuse their market dominance.