Research On The Restricting Of "Patent Holdup" From "Standard Essential Patent"

Prohibition is an important remedy given by patent law to the obligee to safeguard his legitimate rights and interests.In the case of standard essential patents,the unrestricted application of prohibition will lead to "patent holdup",and the implementation of standard essential patents is related to social and public interests.We must abandon the traditional "injunction relief of course" and restrict the phenomenon of "patent holdup".At present,the academic research on the restriction of "patent holdup" mainly focuses on the licensing calculation method of licensing fee,the legal nature of "fair,reasonable and non-discriminatory"(FRAND)clause itself,the judicial application of anti-monopoly law and other fields.However,the provisions on the restriction of "patent holdup" in China are scattered in judicial interpretation,local regulations and judicial guidelines within courts.In the normative documents at the same level,"the Supreme People's court's interpretation of several issues concerning the application of the law in cases of infringement of patent disputes"(II),the twentyfourth section of the guidelines for the determination of patent infringement of the Supreme People's court,and the fourth chapter of the regulations on the protection of intellectual property rights(Draft)of the Special Economic Zone in the fourth chapter also have limitations and maneuverability in application scope.At present,the fourth amendment of the Patent Law and the initial stage of the system of standard essential patents need to expand and deepen the related theory of patent holdup.The author hopes to restrict the "patent holdup" of standard essential patents through the regulation of patent law,and to analyze and study both in theory and in specific terms,so as to provide reference for the further development of relevant theories and the improvement of patent law in China.The main contents of this paper are as follows:The first part is the assumption of patent law restricting "patent holdup".Firstly,the necessity of restricting "patent holdup" is analyzed;secondly,the main restrictive means and shortcomings of "patent holdup" are commented;lastly,the attributes of public and private law of patent law are analyzed.After analyzing that patent law not only has the attributes of private law,but also has the legislative attributes of public law,the author puts forward the idea of using patent law as the restriction of "patent holdup".Want and significance.The second part is about the significance and ways of restricting "patent holdup" in patent law.Firstly,the legal principles of patent holdup restriction are put forward for theoretical analysis: prohibition of abuse of rights,balance of interests,efficiency and fairness;secondly,the feasibility of patent law restricting patent holdup is analyzed,including its legal rationality and significance to judicial efficiency;finally,the ways and key considerations of patent law restricting patent holdup are put forward.The third part is the suggestion of the Patent Law on the restriction of "patent holdup".Firstly,through comparative analysis of the existing normative documents in our country,it is concluded that there are confusion or even conflicts in the current relevant laws and regulations in our country.Secondly,it puts forward some suggestions for amending the specific provisions of the draft Patent Law which is being revised.Through the analysis of this article,the author believes that although there are many ways to regulate "patent holdup",the restriction of "patent holdup" through patent law should be the core legal basis.Patent law has natural attributes of "public and private" law,which involves the regulation of the whole life cycle of patents from generation,authorization and licensing,and the adjustment of the relationship between patentee,patent implementer and public interest.In addition,patent law is simpler and more effective than monopoly law in terms of both scope of adjustment and judicial process.Patent law can restrict "patent holdup" by expanding compulsory acquiescence licensing conditions and statutory FRAND principles.It can achieve the best balance of interests and legal efficiency by stipulating various legal elements such as standard type,patent disclosure,public interest,licensing conditions and so on.At present,the innovation ability of Chinese enterprises is increasing in practice,but they are often limited by standard essential patents.Therefore,the judicial departments in China should pay close attention to the related lawsuits in other countries and integrate their beneficial contents into the national legal reform and revision.How to stipulate the regulation contents of "patent holdup" restrictions related to the development of the country? The analysis and suggestions in this paper are for reference.