| The 14 th Five-Year Plan emphasizes that innovation is the foundation of China’s development,and the environment for innovation needs to be maintained by a sound legal system.Because standard essential patents are closely related to core technologies,it is particularly important for the realization of the 14 th Five-Year Plan to have a complete legal regulation of standard essential patents.This study mainly uses case study method and literature research method to study the necessary patent legal provisions of China’s existing standards.Firstly,through the analysis and summary of ten typical cases of standard essential patents in China,such as "Huawei v.IDC" case and "Huawei v.convinson",it can be found that there are still some prominent deficiencies in the existing legal provisions of standard essential patents in China.Secondly,on the basis of reading a large number of documents,this paper deeply considers the causes and solutions of the deficiency of the existing standard necessary patent laws,and puts forward some suggestions on the improvement of the standard necessary patent laws in China.There are some deficiencies in the legal regulation of standard essential patents in China,which are mainly reflected in three aspects: patent information disclosure system,patent royalty rate determination rules and standard essential patent infringement regulations.The deficiencies of patent information disclosure system are mainly reflected in three aspects: the imperfect standard necessary patent examination mechanism leads to the excessive standard patent declaration,the insufficient patent information disclosure and the failure to establish the necessary patent punishment mechanism for undisclosed standards.The shortcomings of the royalty rate determination rules are mainly reflected in two aspects: the subject of royalty rate determination is too one-sided and the application of calculation method is not rigorous.The deficiency of the infringement provisions of standard essential patents lies in the legislative gaps of the infringement provisions on compulsory standard essential patents and undisclosed standard essential patents,and too few considerations of injunctive relief.This study puts forward suggestions to improve the above-mentioned problems in the legal regulation of standard essential patents in China.For the deficiency of the patent disclosure system,it is suggested to introduce qualified patent service institutions to carefully examine the necessity of standard patents to prevent excessive declaration of standard patents;Regularly update the standard necessary patent information to ensure that the declared list of standard necessary patents maintains high accuracy;The punishment mechanism for undisclosed patents can consider restricting the issuance of prohibitions on such patents,so as to improve the disclosure rate of standard necessary patents.As for the deficiency of royalty rate determination rules,the mediation-litigation dual-path royalty rate determination model can effectively solve this problem.The parties choose the royalty rate determination path according to the negotiation situation.The model is divided into mediation path and litigation path.The expert mediation organization and the court determine the license rate respectively,and different calculation methods are applied to determine the license rate in stages.This model can solve the problems such as one-sided subject of royalty rate determination and imprecise calculation method,and at the same time improve the efficiency of royalty rate determination.With regard to the legislative blank of standard essential patent infringement,after measuring the social interests and the interests of the patentee,the corresponding legislative suggestions are put forward: adding public interests and bargaining power of both parties as the consideration factors for issuing the ban;infringement shall be recognized for the implementation of compulsory standard essential patents and undisclosed recommended standard essential patents without permission;for the sake of public interests,the necessary patentee of mandatory standards should not be banned,and the undisclosed necessary patentee of recommended standards should judge whether to ban or not based on factors such as the fault size of both parties,public interests and bargaining power of both parties. |
