Research On Anti-monopoly Regulation Of Standard Essential Patent Refusal License

With the coming of the era of knowledge-based economy,standard necessary patent plays an increasingly important role in the competition among enterprises and even countries.Because standard essential patent is an indispensable and irreplaceable patent in technical standard,patentee generally has dominant position in relevant market.In order to stabilize and consolidate its dominant position,the patent right of standard necessity often abuses its market dominance,refuses to license the patented technology to the competitors,resulting in the consequences of excluding effective competition in the market,even affecting the well-being of consumers and endangering the public interest.Therefore,in the current market environment,it is particularly important to regulate the anti-monopoly of the standard essential patentee's refusal to license.However,in the process of anti-monopoly regulation,there are still some problems in both the legislative level and the law enforcement level,which need to be further studied and put forward solutions.In addition to the introduction and conclusion,the text is divided into five parts to study the anti-monopoly regulation of this behavior:The first part mainly defines the act of refusing permission of standard essential patentee.Firstly,the standards,technical standards and standard essential patents are defined.Then it defines the act of refusing permission,and introduces the concept and types of the act of refusing permission.On this basis,the author defines the act of refusing permission of the patentee necessary for the standard,and focuses on the manifestation of the act of refusing permission in the process of standard formulation and standard implementation.The second part is the theoretical analysis of the standard essential patent refusal behavior regulated by the anti-monopoly law.Judging from the conditions for determining whether the act constitutes an illegal monopoly or not,because the standard essential patent generally constitutes a key facility,the obligee often has market dominance,and refusing to license will result in the harm of excluding effective market competition and lack of proper reasons,so the act should be regulated by anti-monopoly.At the same time,in the regulation of this act,due to the limitations of the licensing policy of the standard making organization and the shortcomings of the civil law and patent law,the antitrust law has the advantages of various punishment means and flexible policy implementation,which can effectively undertake the task of regulating this act.In addition,the theory of key facilities,the theory of interest balance,the theory of externality of intellectual property and the theory of non abuse of rights also provide a theoretical basis for the anti-monopoly law to regulate this behavior.The third part studies the current situation and deficiencies of anti-monopoly regulation of standard essential patent refusal in China.Starting from the current situation of anti-monopoly legislation and law enforcement,this paper analyzes the existing problems in legislation and law enforcement in China.At the legislative level,there are some problems,such as scattered laws and regulations,lack of unified legislative documents,incomplete provisions of conditions for illegal identification,imperfect liability system,and less strict conditions for injunctive relief.At the law enforcement level,there are some problems,such as the construction of professional administrative law enforcement team needs to be strengthened,the connection between public enforcement and private enforcement is not close enough,and the punishment measures are not systematic and sustainable.The fourth part combs and analyzes the relevant practices of foreign countries and regions with complete development of anti-monopoly law,and summarizes the experience that can be used for reference in China.This paper focuses on the legislation regulation and law enforcement of this act in the United States and the European Union,and concludes that it is necessary to adhere to the principle of safeguarding national interests in legislation and law enforcement when regulating this act against monopoly.At the same time,at the legislative level,we should improve the provisions to determine whether the act constitutes an illegal monopoly,strictly set up the injunctive relief rules,and improve the responsibility system;at the law enforcement level,we should implement systematic and sustained corrective measures.In the fifth part,in view of the existing problems in legislation and law enforcement of our country's regulation of essential patents,the author puts forward suggestions for improvement by referring to foreign experience.First of all,based on the current situation that China is in the transition from a big country of intellectual property rights to a powerful country of intellectual property rights,we should clearly adhere to the principle of safeguarding national interests.Secondly,at the legislative level,we should speed up the development of anti-monopoly guidelines for intellectual property rights,improve the provisions that determine the conditions of anti-monopoly regulation,improve the legal liability system to regulate the behavior,and set up strict injunctive relief rules,so as to lay the foundation for anti-monopoly law enforcement.Finally,at the level of law enforcement,we should strengthen the construction of administrative law enforcement team,closely link public enforcement and private enforcement,and implement systematic and continuous corrective measures,in order to achieve effective regulation of this behavior.