Abuse Of Intellectual Property Rights In Technical Standards And Anti-monopoly

The strategy of"make technique into patents, standardize patents and monopolize standards"has already become mainly means by which developed countries and their multinational companies can occupy the market and get exclusive from the rivals. After a series of cases such as the license of DVD patent, Cisco suited Huawei, Intel suited Dongjin of Shenzhen, we begin to re-understand the relationship between technical standards and intellectual property.Technical standards is one kind of or one series of files with some compulsory requirements and instructional performances, including specific technology requests and concerned technical project, which is characterized by general application, maturity and free, broad usage. The intellectual property right is a kind of exclusive right granted to intellectual product's creator by state department legally, which is exclusive, regional and of timeliness. With the development of advanced and new technologies, technical standards continually upgrade their influence on the market. Through gathering patent technologies as standards, intellectual property holders combine their intellectual property with technical standards, and use the strategy of intellectual property or technical standards to control the market. After the combination of intellectual property and technical standards, the conflict of value between technical standards and intellectual property is apt to result in the abuse of intellectual property. If the behavior of abuse intellectual property rights breaks the balance between the monopoly of intellectual property and the commonweal of technical standards, and destroy the free and fair competition, it will be regulated by anti-monopoly law.The purpose of this thesis is to discuss the abuse of intellectual property after technical standards and intellectual property rights combined, which should be regulated by anti-monopoly law. There are three chapters in the thesis. Chapterâ… starts with the basic questions of the intellectual property and technical standards. Firstly, the chapter outlines the concept of standard, the meanings and classification of the technical standard. Technical standards can be classified into two types, which are De Facto Standards and De Jure Standards. Also this chapter outlines the meaning and main function of the intellectual property. Then discusses with the development of advanced and new technologies, standard-setting organizations have to gather patent technologies as standards. As a result of the combination of intellectual property and technical standards, De Facto Standards which contain intellectual property can improve the competitiveness of enterprises, but on the other hand the De Facto Standards may engender the abuse of intellectual property rights. Once intellectual property rights are abuse, the balance between the monopoly of intellectual property and the commonweal of technical standards may be broken down, and free and fair competition may be destroyed consequently.Chapterâ…¡analyses the abuse of intellectual property rights in technical standards. Through combining with the classical cases, this chapter analyses the abuse of intellectual property rights from the process of making technical standards and the licensing of technical standards. Firstly, in the process of making technical standards, the abuse of intellectual property rights include non-publish patent information and boycott. Secondly, in the licensing of technical standards, the abuse of intellectual property rights include refusing licensing, discriminatory licensing, tying products and patent pool. However, in the technical standard the exertion of intellectual property rights does not constitute the behavior of abuse intellectual property rights consequentially. It needs the analysis of the specific legislation. In a word, if patentee's improper exertion damages others'interests or social interests, his behavior will constitute an abuse of intellectual property rights.Chapterâ…¢is the core chapter of this thesis. There are three parts in this chapter. The first part discusses the reason of regulating the abuse of intellectual property rights in technical standards by anti-monopoly law. It contains two reasons. One is the fundamental goal of the anti-monopoly law and the intellectual property system in the consistency, the other is the rules of anti-monopoly can meet the needs of regulating the abuse of intellectual property rights. The second part introduces and reviews the anti-monopoly legislation of the U.S.A, the EU, Japan Taiwan area of China and the international anti-monopoly legislation. The theoretical research, legislation judicature and law enforcement of anti-monopoly law in developed countries are more advanced than other countries. Currently, these countries and region not only establish anti-monopoly legal system, but also constitute maneuverable regulations or guidelines of regulating the abuse of intellectual property rights. Although the unified international anti-monopoly legislation hasn't been established, in the future the possibility of establishing a unified international anti-monopoly legal system is still in existence.Whereas the lacking of legislation in this field in China, on the basis of necessity and urgency of regulating the abuse of the intellectual property rights by anti-monopoly law, the third part of this chapter puts forwards several proposals on the anti-monopoly legislation to regulate intellectual property right in our country. First of all, our country should promulgate basic anti-monopoly law as soon as possible. And the anti-monopoly law should clearly lay necessary regulations to the abuse of intellectual property rights Secondly, the anti-monopoly law execution institutions should undertake special legislations according to the specific situation in our country. Thirdly, China should establish special anti-monopoly law enforcement agency, through which regulate the abuse of intellectual property rights according to the guidance or rules and regulations made by the concrete conditions in different periods, in order to reinforce the regulation of the technology standard license. Fourthly, in the legislation of anti-monopoly, the exterior applicable efficacy of anti-monopoly should be regulated in order to restrict the international monopoly of the abuse of intellectual property rights due to the multinational companies efficiently.Apart from regulating the abuse of intellectual property rights in technical standards by anti-monopoly legislation, enterprises in China should strive for technical innovation and strengthen the R&D of the core technology, in order to change the backward situation. On the other hand, our enterprises should actively participate in the formulation of industry standards, and make technique into patent, gather the patent as national standards or international standards. The enterprises can use all reasonable and legitimate means to develop their own intellectual property standardization strategy to enhance their competitiveness in the international market.