Technical Standard In The Patent License To Abuse The Right Of Research

In knowledge-based economic times, the technical standard is performing many functions on technical innovation i.e. In the process of exerting its influence on economic, the technical standard often has mutual effect with intellectual property rights license. The owner of intellectual property right may abuse technical standard while he maximize his interests. Because of backward standardization course and its corresponding legality construction and poor technological manpower in our country, the economic and technique are hindered. From the existing legal norms regulating the abuse of intellectual property right, they are very fragmented, incomplete and unclear, though they are direct or indirect to the abuse of technical standard license. The legal system regulating the abuse of intellectual property right, particularly the anti-monopoly law, which is adapt to the requirements of the socialist market economic development and future needs of knowledge-based economy times, is still in its embryonic stage, even almost empty in the strict and complete sense. As a result, our country faced arduous task.Standard is a consensus to develop and recognized by the agency's approval of the document. The documents for a description of what the law, with the aim of the future would be able to use repeatedly. In the competitive high-tech products, the competition has gone beyond the standard product market share and compete to become the mainstream of the market competition. But China has yet to conduct a complete legal system of standards, lack of relevant legislation, not on the technical standards of patent licensing rights abuse effectively.After China's accession to the WTO, the efforts of the developed countries and transnational corporations to form technical barriers to trade and the patent technology restrictions on trade with China startup one after another. Given not against the TRIPS agreement, China has an urgent need for the use of the sovereignty of legislation to resolve the legal issues of intellectual property all over world, especially for the abuse of the technical standard license of the Giant transnational corporations and the foreign enterprises, and to make a strong fight back. Chinese anti-monopoly law has just been introduced, mainly based on programmatic terms, and the implementation details are still brewing. At present, regulating the abuse of right of the technical license is reposed in the administrative ordinances or the temporary administrative ordinances restraining the abuse of rights formulated by the State Council, and the management rules or guidelines formulated by the intellectual property law enforcement organizations. By elaborating the relationship of intellectual property right protection and anti-trust action, balancing intellectual property interests of all parties concerned, making clear the free and fair competition order to safeguard the interests of the community as a whole by using the principle of exhaustion of intellectual property right, and drawing on the experience of European Union, the provisions of the concrete act of abuse are divided into the terms of white , the terms of black, the terms of gray and so on. Our Chinese restraint on the abuse of intellectual property right not only be copied from European, American, Japanese relevant legislation and measures, but also be reflected in our legislation in accordance with national conditions, and its attention to the forward-looking and the tocused. Consequently, our country faced with formidable task.There are two ways to consummate standardization legal system in our country after our state became the membership of WTO: One way is that our Chinese standardization legality construction be urgently compatible with related regulations of WTO agreements ; The other way is that the anti-monopoly law perfect further regulating to the process of standard formulation and to restrain of competition in use of technical standard license, as well as probing and discussing the feasibility of the legal rules and regulations which are put into effect.