Research On The Application Of Implied Lisence Of Standard Essential Patent

The Supreme Court(2008)Min San No.4 reply was regarded by the academic circles as the first imperative licensing theory applicable to the standard in China.Article 85 of the Fourth Amendment Draft of the Patent Law adds an implied license clause for the standard essential patentee to violate the disclosure obligation.The publicity,openness of technology standards and the private nature of patented technology create the “lock-in effect” of standard essential patents.In reality,it is often the case that standard essential patent holders use the “lock-in effect” to charge higher patent license fees or lower the negotiation space of standard implementers,leading to problems such as hindering competition and hindering innovation.Establishing a standard required patent implied license system,and clarifying the applicable rules for implied licenses of standard essential patents,is conducive to balancing the public interest of the standard representatives and the private rights of the patentees,and better promoting China’s economic and social development.The main content of the second chapter is mainly to clarify the definition and legal nature of the implied license of the standard essential patent,and to determine that it is a de facto contractual relationship.Analyze the relationship between standards and patents,and analyze the necessity of implied licenses for standard essential patents from the perspective of balance of interests.Analysis of the classic case proposes that China’s standard essential patent implied license application dilemma lies in the unclear application conditions of the implied license of the standard essential patent and the controversy over the protection of the standard necessary patentee rights after the implied implied license.The main content of the fourth chapter is that the applicable conditions for implied licenses for standard essential patents are not clear,and the applicable rules of implied licenses for standard essential patents are discussed in combination with domestic and foreign experience.The main content of the fifth chapter is to explore how to balance the interests of the standard necessary patent holders after applying the implied license in combination with domestic and foreign experience.The sixth chapter is based on the analysis of the previous article,and puts forward the perfect suggestions for the application of implied licenses for standard patents in China.