Research On Anti-monopoly Regulation On Standard Necessary Patent Abuse

With the increasing protection of intellectual property rights in various countries,disputes over intellectual property rights are increasing,and cases of abuse of intellectual property rights are common.Among all the abuse of intellectual property rights,the patentee's abuse of necessary patent is the most prominent.In recent years,there have been more and more cases of abuse of standard essential patents,such as Huawei v.IDC case and U.S.FTC v.Qualcomm case in 2019.In recent years,the abuse of standard essential patent has become the focus of anti-monopoly regulation in various countries.The law enforcement practice of the United States and the European Union is earlier and deeper,and the experience in this field is more abundant.However,the research on anti-monopoly regulation of standard essential patent abuse in China started late,and many aspects are not perfect.Therefore,China needs to learn from the advanced legislation and law enforcement experience of developed countries such as the United States and the European Union,and find out the shortcomings of the system and improve them.The patents that must be used in the implementation of technical standards are called standard essential patents.As the standard necessary patent is a patent that must be licensed in a technical standard,the standard necessary patentee can demand the licensee to pay a high patent license fee and other abuses.The abuse of standard necessary patent refers to the behavior that the holder of standard necessary patent uses the advantage of its specific technology and standard field to exercise the patent right unreasonably to exclude or unfair trade,thus causing a certain degree of loss to the public interest.The characteristics of standard essential patent make the operators who master the standard essential patent inevitably dominate the "rules of the game" of the competition of relevant industries,dominate the acquisition of interests and licensing of rights in relevant markets,monopolize relevant technology markets,and then lead to a series of hazards such as damaging the innovation and technological progress of relevant technology markets,damaging the interests of consumers,and forming technical barriers between international trade.Therefore,the holders of standard essential patents must follow the FRAND(Fair,Reasonable,Non-Discriminatory)principle to exercise their patent rights.At the same time,the definition of the relevant market and the determination of the dominant position of enterprises in the standard essential patent licensing cases are the important premise and basic basis for the regulation of the standard essential patent abuse in our country.The standard essential patent abuse mainly includes the abuse of injunctive relief,unreasonable pricing in violation of FRAND principle,tying sale of non-standard essential patent,refusal to grant license right and forced reverse license five forms of expression.At present,China's Antimonopoly Law,patent law and their supporting laws and regulations still have some defects in regulating the abuse of essential patents,which leads to the defects of administrative law enforcement and judicial practice.The United States,the European Union and Canada have advanced experience in the anti-monopoly regulation of the abuse of standard essential patents.On the basis of the experience of the above countries and regions,this paper makes the following suggestions on the legislative and judicial aspects of the anti-monopoly regulation of the abuse of standard essential patents in China: first,in the legislative aspect,it is necessary to make clear the identification target of the reasonable license fee under the "FRAND principle" to be precise,to make clear the elements of the abuse of injunctive relief and to perfect the system of patent refusal of necessary standards in China.Secondly,in the judicial aspect,we should make clear the system of "judicial review of necessary patents",establish a special anti-monopoly review mechanism and improve the judicial relief system.In a word,China has a long way to go in anti-monopoly regulation of standard necessary patent abuse,which urgently needs to be improved,so as to achieve the goal of rapid development of industrial economy and powerful country in science and technology.