A Study On Implicit Licensing System Of Standard Essential Patents

With the development of global economic integration and frequent trade exchanges,the competition between enterprises is no longer the competition of market economy share on the surface but the internal patent war.In recent years,the patent competition in various countries is not only limited to the number of patents、quality and other aspects of competition,gradually began around the patent into the standard of competition,have more standards essential patents become an important strategy in the field of advanced technology.In order to balance the interests of the relationship between patent practitioners and patentee,affairs office of the state council on December 2,2015 published the draft amendment to the patent law of the People’s Republic of China(Song Shen Gao)(hereinafter referred to as the " patent law Song Shen Gao "),to solicit comments from all sectors of society,including article eighty-five the standards essential to patent in China and puts forward some constructive idea of implied license system building and widespread social concern is caused;how to make the system more scientific,analyzes the existing problems need both combined with the reality of our country,and to draw lessons from foreign existing legislative and judicial review,but need to scientifically define the meaning of standard essential patents implied license,legal attribute,theoretical basis,cognizance conditions and specific content,standard type,the price problem,etc.This paper is composed of introduction,text and conclusion,in which the text is divided into four parts.Firstly,the meaning and legal attribute of the implied license of the standard essential patent are analyzed,and then the theoretical basis of the implied license of the standard essential patent is discussed;Secondly,this paper studies the status of the system of implied license for essential patents in China,analyzes the current legislative and judicial status of the system,and summarizes the deficiencies of the system;Third,in the aspect of legislation and judicature,we should investigate the system of implied license of essential patent in foreign standards,and finally find the legislative technology and judicial experience that can be used for reference in our country;Finally,based on the theoretical basis of the system of implied license for standard essential patents,combined with China’s current situation and overseas experience,this paper puts forward Suggestions for improving the system of implied license for standard essential patents in China.