On The Anti-Monopoly Law Of The Standard And Essential Patent Infringement Relief

The patent itself is exclusive.After the patent is standardized(become Standard essential patents),it becomes a patent that must be used to produce a certain product or reach a certain technical standard.The monopoly of the essential essential patent is further strengthened.Based on this,the standard essential patent holder may further increase his or her superior position in negotiation by applying for injunctive relief so as to obtain a higher permit fee or attach other unreasonable permit conditions,resulting in "patent hold-up”;however,On the other hand,if the court does not grant the injunction or the conditions for issuing the injunction are too strict,"reverse patent hold-up" may occur,meaning that the user deliberately delays the negotiation because he knows it is impossible or difficult for the obligee to obtain the injunctive relief Damage the rights of the patentee,and the patent itself has the characteristics of more easily infringed.In recent years,there have been several cases concerning the remedies of the standard essential patent injunctions in our country.However,there are some controversies about whether the ban is issued or not,and the ways of handling are different in practice.Interpretation of the Supreme People’s Court on Several Issues Regarding the Application of Law in the Trial of Cases of Infringement on Patent Disputes in 2016(Ⅱ)(hereinafter referred to as "Judicial Interpretation(Ⅱ)"],Judicial Interpretation(2)Article 24 sets forth the standard essential patent ban Relief issues,whether to issue a ban,the Supreme People’s Court’s thinking is to consider fair,reasonable,non-discriminatory(FRAND)licensing commitments require both parties to negotiate in good faith,according to the goodwill of both parties to decide whether to grant the ban;In order to solve this problem,the Anti-monopoly Guide on Abuse of Intellectual Property(Draft for Soliciting Opinions)promulgated by the Anti-Monopoly Commission of the State Council in 2017 firstly considers whether the right-holder occupies the dominant position in the market,Although the guidelines are currently still in the process of soliciting comments,the guidelines are proposed by the United Nations Development and Reform Commission,the Ministry of Commerce,the State Administration for Industry and Commerce and the State Intellectual Property Office and represent the opinions of the executive authorities.Earlier,the "Huawei v.IDC" decision is also by considering whether it constitutes abuse of market dominance to decide whether to issue a ban.It can be seen that there are different solutions to the same issue so that there is a great deal of uncertainty about whether the ban is granted or not.In addition,there are still some unreasonable provisions in the provisions of judicial interpretation(b)above.Article 24 is more based on the FRAND promises,but does not explain the specific connotation of the promises,the reasons for the defenses are too weak.Secondly,what is the user’s "no obvious fault" is not explained either,and judicial interpretation(b)is applicable There are difficulties.There are mainly two kinds of regulations in each country,one is the single regulation of patent law and the other is the introduction of the composite regulation of competition law.Based on the status quo of China’s legal system and industrial environment,as well as the lack of regulation through the FRAND commitment only,the anti-monopoly law should be applied to regulate,that is,the above-mentioned second regulation method.Specific reasons include:the issuance of injunctions is most likely to undermine competition;the trend of specialization based on legal developments.In the regulation of specific rules,the development of modern antitrust law requires that it not only focus on competition issues,but also other social goals,such as innovation.In response to the issue of injunctive relief,the antitrust law should solve both "patent hijacking" and "reverse hijacking." Combined with the basic trend of regulation in various countries,the basic stance of the anti-monopoly law should be:balanced interests and balance.The specific method of regulation,based on the general analysis of antitrust law,combined with the characteristics of the patent itself.First of all,it should be analyzed whether the standard necessary patentee has the dominant position in the market.In the analysis,"assertion" rather than "presumption" should be adopted.Having the standard essential patent does not necessarily have the dominant market position.The second is to constitute "abuse",constitute abuse should consider the following specific factors,one is the patent holder’s "omission",the second is that the user is willing to negotiate in good faith,the third is to consider the impact of the ban on the licensing negotiations,the fourth is to consider The impact of the ban on the public interest.The final judge whether the ban should be issued.