Research On Application Rules For Cessation Of Infringement On Standard-essential Patent

Third-rater corporation depends on hardworking, second-rater corporation sales production, first-rater corporation relies on technique while super corporation counts on standards. Apparently, it is the ultimate pursuit to become a constitutor of standard so that the other people will implement the patent inevitably if manufacturing the related production. With the advance of the standardization process, both the theorist and the practitioners have to face the recent rising proposition.The nature of Standard-Essential patent complicates a lot of problems. On the one hand, patent right in essence, regarded as a kind of exclusive right, prohibits others from manufacturing, selling, offering for sale or importing patented product. On the otherhand, Standard-Essential patent being part of standard is quasi-public good, which means to promote technology popularization. Injunction is a significant embodiment and guarantee of the exclusive right. It is common sense that the existence of standard will restrict the application of cessation of infringements. However,there has been a conflict with the common practice in our country, while the cessation of infringements is always supported by the court as long as the infringements established. Juridical practice attempt to solve the problem only causes more problem since it seems to move from one extreme to the other. There has been a dispute when it comes to whether the limitation is so strict that refuses application of cessation of infringements in Standard-Essential patent. To be more specific, when patents are essential to technical standards and the patentee have committed to license on FRAND terms, whether the patentee still be entitled to seek injunction relief? If so, what factors should be measured? Since cessation of infringements is equal to permanent injunction relief in essence, it is valuable to do some research about the US practice.Most standardization organizations come up with a “Fair Reasonable and Non-discriminatory” terms, also known as the FRAND Commitment, to balance the benefit between the patentee and the patent licensee. The FRAND Commitment which has profound influence and be accepted widely has not comes to a uniform understanding of its meaning. The lack of operability in explanation leaves behind a great deal of issues to discuss. FRAND terms does not exclude injunction relief itself, however it does restrict the application of injunction relief. It is sensible to use the discretion owned by the court to make the decision. Patentees who apply for injunction relief may be seeking for benefits exceeding in FRAND Commitment, which violates the FRAND Commitment and can’t be protected by law, or benefits under the restriction of FRAND Commitment.In order to promote technology popularization and prohibit patent hold-up, whether US courts, International Trade Commission, Federal Trade Commission or US department of Justice hold the view that injunction relief issued to Standard-Essential patent under the constraint of FRAND Commitment should be more restrict to ordinary patent due to reasons mentioned above. Nevertheless, the framework laid out by the Supreme Court in e Bay, as interpreted by subsequent decisions of this court, provides ample strength and flexibility for addressing the unique aspects of FRAND committed patents and industry standards in general. FRAND committed patents will have influence on the two of the four factors outlined by e Bay case, which are factor one “irreparable injury” and factor four “public interest”. Identically, the exclusion order is under the restriction of Section 337. An injunction may be justified when the infringer is taken as unwilling licensee.Therehas still been some disputes about the identification standard nevertheless some agreements has already been reached through legal practice.An cessation ofinfringements may be appropriate remedy in some circumstances, such as the putative licensee refuses to take license when implement patent; is unable or refuses to pay what has been determined to be F/RAND royalty; is not subject to the jurisdiction of a court that could award damages; refuses to participate in litigation; insists on terms clearly outside the bounds of what could reasonably be considered to be F/RAND terms in an attempt to evade the putative licensee’s obligation to fairly compensate the patent holder. On the contrary, a potential licensee should remain free to challenge the validity, essentiality or infringement of the Standard-Essential patent. The cessation ofinfringementsshould not be issued when the potential licensee seeks judicial adjudication about whether the offer produced by patent holder meets the requirement of FRAND.