A Research On Anti-monopoly Regulation Involving Standard Essential Patents

Standard-essential patents,a combination of standards and patents,are naturally unique.This particularity,on the one hand,lies in the standard publicity of the patents because of patents' combination with the standard,which is closely related to the public interest of the society;on the other hand,it manifests the irreplaceable and mandatory rules to the standard implementers.As to the question whether the relevant behaviors of standard-essential patents need or should be regulated by anti-monopoly law or not,the main arguments in the theoretical and practical fields are whether the standard-essential patentee has the monopoly position in the patent-licensed market,and whether the patentee whose licensed behaviors in the dominated relevant market follows the FRAND principle.The FRAND principle is the standard organization requires the patentee to make a commitment to authorize a third party to use its patent on the principle of “fairness,reasonableness and non-discrimination” when a patented technology is included in the standard so as to balance the interests between the necessary patent holders and the standard implementers,to prevent patent hijacking,and to avoid the barriers in the acceptance and promotion of patent licenses.That's to say,the patent would not be included in the standard without patentee's “ FRAND” commitment.Due to the different technologies,industry conditions,business practices,etc.,there is no unified pricing mechanism and calculation method for license fees in standard-essential patent.The patent license fees based on “fairness,reasonableness and non-discrimination” should be specifically analyzed in specific cases,taking the following factors into consideration: the value of standard-essential patents,the conditions of comparable authorized license,the competitive relationship between the patentee and the licensee,and the value of alternative patented technology.The reasons for standard-essential patents monopoly are mainly patentee's acts of bad faith,abstract constraints from the FRAND principle,and standard-essential patentee's abusing in injunctive relief.In order to make anti-monopoly regulations on the relevant acts of standard-essential patents,there is a need to establish the disclosure system of the expected patent information at the very beginning of standard establishment.And the disclosure system requires the patentee to truthfully disclose the true information of the patented technology,the billing standard and maximum limit of patent license fees based on “fairness,reasonableness andnon-discrimination” in advance.,In implementing the standard,anti-monopoly regulations,combined with the information disclosed by the patentee in the previous period,should reasonably restrict the injunctive relief right of the patentees by judging their violation matters of the patent license fees according to the FRAND principle;and establish a reasonable method for calculating the license fee for the standard-essential patents.When the standard-essential patentee is suspected of licensed monopoly,anti-monopoly regulations,combined with the impact of the act on the market competition order,should consider the introduction of the commitment system before the anti-monopoly punishment so as to quickly restore the market competition order and save law enforcement resources.