Research On The Legal Issues Of The Application Of The Standard Essential Patent

As a standard of industrial and economic order,it promotes the development of internal division of labor,industry and trade,and external means technology and industrial barrier.The mode of standard operation is from technical specialization to patent standardization to standard licensing.From the degree of the current research status of standard necessary patent protection and regulation,the application of the injunctive relief,relevant market definition,the determination of license fees systematic research on the problems such as the methods and principles,not only can deepen the problem understanding of standard essential patents,for a series of questions about our standard essential patents regulation approach,the top design,also helps to improve.Standard is the country as well as new sources of core competitiveness,enterprise level associated with the invention of the standard is the transition from technology strategy in succession to the standard strategy of the developed countries,and founding a successful transition to the state intellectual property by technology,for a standard patent issues of academic inquiry necessary to provide theoretical basis for the smooth implementation of standard strategy in China.The research content of this paper is mainly divided into the following four parts:First of all,the regulation of patent hijacking in the standard necessary patent by law.This part mainly discusses the necessity of legal regulation of patent hijacking,the current situation of using law to regulate patent hijacking and the regulation Suggestions of patent hijacking.As for the regulation of patent hijacking,there is a lack of legal basis and inadequate legal regulation in our country,so we should adhere to the core principle of patent system--interest balance,and construct a systematic regulation scheme of patent hijacking.Secondly,the nature and application of FRAND commitment are studied.This part mainly introduces the content and function of international standard to make intellectual property policy.As for the nature of FRAND acceptance,there are three viewpoints: compulsory contracting theory,invitation to offer theory and contract for the benefit of a third party.This paper holds that defining the nature of FRAND acceptance as invitation to offer can better reflect the principle of interest balance and regulate the phenomenon of patent hijacking.Thirdly,the standard of necessary patent injunctive relief concerns the study of applicability.This part mainly focuses on the judicial practice of the applicability of extraterritorial injunction relief,and studies the practice cases of the courts of the European Union and relevant law enforcement agencies,and the courts of the United States and relevant law enforcement agencies.In China,there are three viewpoints on the application of injunctive relief: exclusion application,full application and restricted application.This paper holds that the limitation of the applicability of injunctive relief mainly has the function of preventing the patent hijacking by the patentee necessary to the standard,and secondly can evade the reverse hijacking by the patentee necessary to the standard.Finally,the standard necessary patent license fee problem research.This part mainly introduces the factors that should be considered in determining the necessary patent licensing time and the specific confirmation methods."Georgia-pacific" factor is known as the "gold standard" for determining reasonable license fees.In terms of specific calculation methods,incremental value method,inversion method and comparable transaction method are relatively common methods at present.