Study On The Injunctive Relief For Standard-Essential Patents

With the increasing trend of the combination of industry standard and patent, the applying and antirust problems around injunctive relief for standard-essential patents(SEPs) come into existence. There are substantial divergences both in academic fields and in professional circles with respect to whether patent holders can seek and obtain injunctive relief against potential implementers of industry standard and whether seeking for injunction violates antitrust law since patent holders have already promised to license their SEPs on fair, reasonable and non-discriminatory(FRAND) terms and considering the lock-in effect that comes with standardization. In this article, the author holds that, on the one hand, patent holders are obliged to license their SEPs on FRAND terms, therefore the grant of injunction should consider whether patent holders breach FRAND obligations and whether potential licensees act in good faith; on the other hand, right of action, especially the right of seeking for injunction, is the core method for the protection of patent rights and the development of technology, therefore it should not be unduly restricted as a result of standardization and requires antitrust analysis to fully consider its anti-competitive effects, the objectives of patent law and standard-setting process.Besides its introduction and epilogue, this article is consisted of four parts. Part I is overview, in which the author puts forward the concept of SEPs and introduces disclosure mechanism and FRAND commitments related to standard-setting process. Part II is focused on the influences of FRAND commitments on the injunctive relief for SEPs; in this part, through analyzing FRAND commitments, the pros and cons of injunctive relief for SEPs, the author concludes that FRAND commitments does not exclude the grant of injunction in a general sense, and patents holders can seek and obtain injunctive relief against unwilling licensees after the fulfillment of FRAND obligations. With a focus on legal practices of European Union and America, part III concludes that by resorting to antitrust law, EU begins to provide behavior guides for negotiating parties to resolve disputes bilaterally, while based on the principles of equity, US court has imposed harsh conditions on the applying of injunction, making the grant of injunction become case-specific and unpredictable. In part IV, after introducing the domestic legal practices in relation to SEPs, the author analyzes the existing problems, and puts forward concrete proposals.