| With the background of new technology revolution characterized by informationtechnology, digital technology and economic globalization, "technology patented,patent standardized, and standard monopolized" has become the new rule of theinternational market competition in this knowledge economy age.Technical standards can be divided into de jure standards and de facto standardsaccording to the concerned organizations and the procedures. Either de jure standardsor de facto standards, especially the standards in high-tech fields, contain someessential patents. For the necessity of essential patent in technical standards, theantitrust censor has been an important step in technology licensing and technicalstandard licensing.For one thing, technical standards and patent rights share some characters incommon. For the point of inspiring technical inventive spirit, they both bestow theconcerned rights owner with certain exclusive rights. For the point of encouraging thepatentee to develop, apply and assign technology, they both impose certainrestrictions.For the other, as a result of the balance of patent rights and the social commonvalue, the prior value of patent law is to protect the interest of the patentee, providedthat the public interest has not been infringed. In order to keep this balance, the patentlimit system is set in every country's patent law such as the exclusive rights period,the obligations in spreading the patent, the compulsory licensing system and theexceptions not treating as infringement. Even so, for the combination of patent andtechnical standard, the balance is inevitable to be broken to some extent.The purpose of technical standards is to reach a reasonable distribution of thetechnical resource and a promotion of technology development. Combining withpatents, technical standards are controlled by some minority to limit competition andgain monopoly benefit. For this reason, the pursuit of combining their patentedtechniques into the technical standards is not only for the purpose they can get theexclusive patent rights, but for the purpose they can control the technical standards by means of their ownership of the patents in them. As a result, patents in technicalstandards can be easily abused, which will threaten the core value of liberty and breakthe balance mechanism of patent system.With monopoly of patent rights and unity of technical standards, the technicalstandards not only escape from the territory limit of the patent right, but keep amonopoly position in market access and exclude the products not according with them.And for the erasing of the tariff barrier, technical standards have been a main barrierin international trade.Therefore, the research on how to use technical standards in fair doctrine andhow to regulate the unfair use of patent rights in technical standards has theoreticaland practical value. The first part of this paper discusses the coherence andcontradiction between technical standards and patent rights in view of the relationsbetween them. That's the reason for the combination of technical standards and patentand the reason for patent rights abuses in technical standards. With the related cases,the second part discusses the form of patent rights abuses in the process of technicalstandards formulation and in its assignment. The third part discusses the regulation ofpatent abuses in international convention, intellectual property policies of thestandards organizations and the judicial practices in foreign countries. On the basis ofthe former discussion, the domestic legal regulation system is discussed and theconstructive advice of consummating the related regulations is put forward. |
