Research On Patent Reverse Hijacking And Its Legal Regulation

Patentes are included in the standard combination and are called standard essential patents.The patents that are included in the standard often belong to the technology that was irreplaceable at that time.Therefore,the standard necessary patent holders have mastered a very large market discourse right,and the standard essential patent holders often use this.Advantages: Obtain a very high patent license fee from a potential standard implementer,or improperly obtain a negotiation advantage in the patent licensing negotiations by seeking injunctive relief or threatening to use injunctive relief to obtain a high patent license fee.Or discriminatory treatment for standard implementers with similar conditions.The academic community called this phenomenon "patent hijacking."For patent hijacking,standards development organizations reduce the risk of patent hijacking by developing relevant intellectual property policies.These intellectual property policies require that the standard essential patentee agrees to comply with FRAND's “Fair,Reasonable,Nondiscrimination” commitment to license its standard essential patents.FRAND's commitment is to prevent standard-neighboring patent holders from taking advantage of monopolies to gain illegitimate interests.However,in the case of using the FRAND commitment to regulate the patent hijacking of the standard implementers to the standard implementers from the perspective of the standard implementer,things are turning to another direction: due to the ambiguity of the FRAND commitments,there is no An authoritative interpretation,regardless of the licensing conditions proposed by the standard essential patentee,the standard implementer deliberately delays the negotiation of the standard essential patent license on the grounds that the license conditions of the standard essential patent right holder do not comply with the FRAND commitment,refuses to negotiate,The anti-monopoly law enforcement agency filed a complaint with the court or filed a malicious lawsuit with the court to issue a challenge to the standard necessary patentee,in order to obtain a relatively low patent license fee or even a free use of the patent,which resulted in the reversal of the standard implementer's right to the standard necessary patent holder.hijack.The original intention of the patent law is to measure,select and integrate the legitimate monopoly interests of the patentee and the interests of the public,and achieve a dynamic balance between the two interests.Patent reverse hijacking will undermine the above-mentioned interest balance mechanism,undermine the balance of interests between the standard necessary patentee and the standard implementer,and have a bad influence on the originally orderly standard essential patent licensing market.Therefore,it is particularly important to solve the problem of patent reverse hijacking.In view of this,we should first analyze the basic connotation,causes,manifestations and hazards of patent reverse hijacking,and use this as a starting point to further remove the FRAND licensing rate judicial recognition system,patent information disclosure and FRAND license rate disclosure mechanism.Deficiency and the inadequacies of patent reverse hijacking relief The analysis of the status quo and shortcomings of patent reverse hijacking regulation in China's legal practice,followed by the same angle to sort out the legal practice of anti-abandonment of patents in foreign countries,and finally to China The status quo and deficiencies,and the selection of the best experience in the legal practice of foreign countries,from the improvement of the FRAND licensing rate,the establishment of patent information disclosure and FRAND licensing rate disclosure mechanism,improve the injunctive relief,improve the damage compensation Suggestions for China to better regulate patent reverse hijacking.