Identification System Of The Essential Patent In Technical Standard

With modern techniques becoming more complex, technical standard has significantadvantages that standard reduces the social transaction costs and improves the quality ofindustry services. In the process of implementing patent technology standard,manufacturers need to obtain the permission of the patentee and pay patent licensingfees. The quantity and quality of patent in technical standard directly determines the costand effectiveness of the implementation of technical standards. Therefore, theidentification of essential patents in the process of setting technical standards is veryimportant.What is essential patent? What are the elements of the essential patent? How to makesure that a patent is necessary for a technical standard? Based on the perspectives ofstandardization activities and fact standard formed by enterprise alliances, the essentialpatent of technical standards is chosen as the research object in this paper. On the basis oftheoretical study of the concept of technical standard and essential patent, this paperanalyzes the relationship between technical standards and essential patents and focuses onthe active and passive identification systems of essential patent. The main contents of thisarticle include:Chapter I presents the domestic and international literature review of the technicalstandard.Chapter II introduces the concept of technical standards, the inevitability of thecombination of technical standard and patent; and the theoretical analysis defined bydomestic and international standardization organization.Based on the concept of essential patent defined in the second chapter, ChapterIII illustrates the three elements of the essential patent, including: technically necessarily,technically irreplaceable, and the inevitable infringement in legal.The problems of the active identification system of the essential patent, which isproduced in the formulation stage of technical standard, is the most important issue in theresearch of essential patent. First of all, Chapter IV analyze the necessity of the active identification; Second, the reasonable mechanism is key to the active identification, thispaper research how to develop a transparent identification process to be generally acceptedand recognized by the industry; Finally, this paper presents the legal questions arising inthe process, such as intentionally fails to perform the patent disclosure obligations,refusing to join technical standard and a boycott of necessary patent inflow and outflow.Chapter V of this paper introduce judicial review into the identification systems ofessential patent, which is referred as the passive determination of the essential patent inthis paper and analyze what kind of independent claim which a patent is essential to atechnical standard can be recommend in procedural law.On the basis of previous research, the last Chapter put forward my thinking andsuggestions in how to improve our identification system of the essential patent.