Anti Monopoly Law Regulation Of Standard Essential Patent Injunction Remedy Abuse

The patent itself is exclusive.When the patent becomes the technical standard of the industry(that is,it is transformed into the standard necessary patent of the industry),it makes the patent become the patent that must be used to manufacture a certain commodity or meet the technical standard of a certain industry,which further enhances the monopoly of the patent.At the same time,the standard essential patent has certain particularity:on the one hand,the holder of the standard essential patent may use his special status to apply for injunctive relief intentionally to increase his chips in business negotiations,so as to strive for higher patent licensing fees or add some unreasonable patent licensing requirements,resulting in "patent hijacking";on the other hand,if If the court refuses to issue the injunction or excessively improves the standard of issuing the injunction,it may lead to the situation of "reverse patent hijacking",that is,the user of standard essential patent knows that the patentee has great obstacles in applying for injunctive relief or cannot obtain injunctive relief very quickly,so he intends to delay the negotiation time,thus damaging the legitimate interests of standard essential patent holders,while the patent book The body is more vulnerable.In the regulatory path,in order to prevent the abuse of patent injunction relief necessary for standards,there are two existing regulatory paths in various countries,one is the regulation mode of patent law combined with anti-monopoly law,the other is the regulation mode of patent law combined with contract law.Combined with the current situation of legislation and economic environment in China,as well as the problems existing in regulating only according to frand principle,it is necessary to introduce anti-monopoly law.The specific reasons include but are not limited to:there are many deficiencies only based on the current patent law;inappropriate issuance of injunctions will damage the fair market competition to a certain extent.From the perspective of judicial practice in China,in recent years,there have been many cases involving standard necessary patent injunction relief in China.However,when the courts around the country decide whether to pass the anti-monopoly law when solving patent disputes and whether to issue injunctions,the handling methods in practice are not the same,or even quite different.The regulatory path chosen by the court and the specific measures to solve patent disputes are certain In terms of legislation,there are many provisions related to this issue in the current laws or relevant documents of our country,such as the interpretation of the Supreme People's Court on Several Issues concerning the application of laws in the trial of patent infringement disputes(?)in 2016.Article 24 of the judicial interpretation involves the treatment measures for standard necessary patent injunction relief,aiming at whether to issue injunction One problem,the solution of the Supreme People's court is to comprehensively consider the patent licensing commitment made by the patentee on the basis of the principle of fairness,rationality and non discrimination(frand principle),require the parties involved in the case to consult in good faith,and decide whether to issue an injunction based on the determination of the goodwill of both parties;moreover,the antimonopoly Commission of the State Council issued the "on abuse" in 2017 The anti-monopoly guide of intellectual property(Draft for comments)is also refined to a certain extent,and the relevant issues are improved.However,this still can not cover up many deficiencies in the practice of our country,such as the fuzzy application of frand principle,the lack of clear application standards of injunctive relief,and the lack of identification elements of abusive acts of injunction.Moreover,looking at the current relevant cases in China,including Huawei v.IDC and Xi'an XDT v.Sony,it can be found that even when dealing with the same problem,the specific measures in judicial practice may be quite different.The direct result is that different courts have different thresholds for issuing bans,which eventually leads to the whole case The verdict is different.In terms of specific rules of regulation,with the continuous improvement of anti-monopoly law around the world,it is required to achieve more social goals,such as promoting the continuous innovation of economic society,while regulating competition.As for the standard necessary patent injunction relief,anti-monopoly law should not only deal with the phenomenon of "patent hijacking",but also solve the phenomenon of "reverse patent hijacking".Combining with the basic direction of regulation in different countries and the specific situation of judicial practice in China,we should firmly combine the basic position of anti-monopoly law to regulate patent disputes.Specifically including:first,we should determine the specific application mode of frand principle,not only to eliminate the nature dispute of frand commitment in judicial practice,but also to strictly define the adjustment scope of fair and reasonable non discrimination;second,we should define the conditions for the obligee to apply for injunctive relief,on the one hand,we should clarify the subjective state of the obligee and the user,on the other hand,we should make the negotiation between the parties begin Finally,we should analyze whether the obligee constitutes "abuse",and consider the following specific factors:first,whether the obligee does not act,second,whether the injunctive relief is efficient,third,comprehensively consider the impact of issuing injunction on the public interest,and finally decide whether to issue injunction.