On FRAND Hijacking In Standard Essential Patents

Compared with general patents,the monopoly nature of standard essential patents makes them have a larger scope of use and influence on interests.Therefore,standard-setting organization usually require the holders of standard essential patents to disclose their patents and make FRAND commitments during the standard-setting process.Only if the holder makes a FRAND commitment can a specific patent be included in the standard.However,due to the fuzziness and uncertainty of the FRAND principle,coupled with the excessive emphasis on the strong position of the holders of standard essential patents in traditional thinking,only the phenomenon of patent hold-up is alarmed and regulated,while the patent hold-out which exists objectively is ignored.Patent hold-out has exceeded the boundaries of normal commercial behavior.This kind of behavior is essentially seizing the benefits that should belong to others through an illegal means.So it has the nature of malicious infringement.This behavior will have a negative impact not only on the holders of standard essential patent,but also on industry ecology and judicial area.Therefore,this article takes the patent hold-out as the research object,and further discusses the behavior identification and how to reduce the occurrence of this kind of behavior by analyzing the commonness of the main behavior types in practice,the existing regulations and the places to be perfected.This article will mainly study and discuss the issue of patent hold-out in standard essential patents from the following four aspects.The first chapter gives an overview of the standard essential patents and patent hold-out.Among them,the first section makes a necessary introduction to the standard essential patents and FRAND principles from the background.The second section mainly sorts out and summarizes the basic concepts of patent hold-out and its common manifestations in practice and direct harm.On this basis,it further analyzes the possible causes of patent hold-out and provides a certain basis for the subsequent suggestions.In the second chapter of this paper,the existing international and domestic legal regulations and judicial positions are preliminarily sorted out to cope with the internal and external investigation of patent hold-out.Based on the analysis of the typical measures and viewpoints,especially the introduction of beneficial experiences abroad,through the comparison of their commonness and differences,we can seek for more suitable practices for us to learn from and improve our country's handling of standard essential patent cases.The third chapter of this article is an analysis of the focal issues of patent hold-out.On the basis of summarizing the controversial focal issues involved in the behavior identification and relief measures involved in patent hold-out cases,it further analyzes the deficiencies in the existing legal norms in our country,and makes targeted comments on the specific issues according to the extraterritorial experience and the points raised in the judicial cases in the previous part.Finally,based on the analysis of the legal regulation and the causes mentioned above,the paper puts forward suggestions from the aspects of legal regulation,industry organization and holder of standard essential patent in order to deal with the problem of patent hold-out through a systematic framework focusing on perfecting legal regulation and combining various forces.