Research On Implied License System Of Standard Essential Patent In China

Standard Essential Patents(SEP)have both the monopoly of patents and the public good of standards,and involve the interests of the public,patentees and related rights holders.In order to balance the interests of multiple parties and promote the smooth implementation of standards involving patents,standard-setting organizations encourage patentees to fulfill their disclosure obligations and license without discrimination by formulating patent policies.However,the phenomenon of patent hold-up and patent ambush occurs frequently.In order to regulate these behaviors,the Implied license system of SEP has emerged.China is currently undergoing the fourth revision of the Patent Law,and for the first time,this system has been stipulated in legal form,which has aroused heated discussions in theory and practice.This article uses the methods of literature research,comparison,and empirical analysis to demonstrate the legitimacy of the Implied License System of SEP from the perspectives of Civil law,law and economics,antitrust regulations,and the balance of intellectual property rights to clarify the legitimacy of the system.After reviewing Chinas relev ant legislative provisions related to the system and layer by layer analysis of judicial cases,it is pointed out that the system has problems such as unclear disclosure requirements,implied permitted objects,constituent elements,and considerations.And then,comparing with foreign experience and seeking valuable inspiration for Chinas system construction,it put forward suggestions for the establishment and improvement of the Implied license system of SEP in China,including three points:(1)clarify functional value positioning of the Implied license system of SEP in the Patent Law;(2)improve the patent information disclosure requirements in the patent policy.(3)propose legislative proposals to establish the Implied License System of SEP;...