Study On Reverse Patent Hold-up Caused By Patent Standardization In International Trade

Under the trend of patent standardization in international trade,how to strike a balance between the protection of standard essential patents(SEPs)holders and the SEPs implementers is an important objective pursued by the SEPs licensing mechanism.Specifically,it is necessary for us to not only protect the SEPs implementers’ ability to use the standards and the SEPs but also not damage the innovation enthusiasm of SEPs holders.This paper analyzes the risks and the status quo of reverse patent hold-up in the perspective of the SEPs holders,and provides the reflections and countermeasures to regulate the reverse patent hold-up in order to improve the SEPs licensing procedure.In addition to the introduction and conclusion part,this article is divided into the following four parts:The first part,“The Background and Meaning of Reverse Patent Hold-Up in International Trade”,introduces the background and meaning of reverse patent hold-up.In the background of patent standardization,there are natural conflicts in the SEPs,the outcome of the patent standardization,the conflict between the public welfare of the standard and the private rights of the patent.The academic community generally believes that the SEPs holders are likely to use their dominant position to do so-called patent hold-up behaviors to SEPs implementers.In order to standardize patent licensing procedure of SEPs field,the standardization organization proposed a patent licensing policy,the FRAND principle,that is,the principle of fairness,reasonableness and non-discriminatory principle.However,due to the unclear flaws of the FRAND principle,the malicious SEPs implementers can usually use the ambiguous FRAND principle to make reverse patent hold-up behaviors,hijacking the legitimate rights and interests of the SEPs holder.The second part,“Risk Analysis of Reverse Patent Hold-Up”,summarizes the potential risks faced by SEPs holders.Specifically,the SEPs holders are often subject to a series of restrictive measures proposed by SEPs implementers,which all designed to reduce the bargaining power of the SEPs holders.And these proposals,will become the real reverse patent hold-up risks that the SEPs holders will suffer.The third part,“The Status Quo Analysis of the Reverse Patent Hold-Up”,analyzes the status quo of the reverse patent hold-up.On the practical level,the risk of reverse patent hold-up faced by SEPs holders is often neglected.On the theoretical level,there are limitations and vacancies of legal regulations and related policies for preventing reverse patent hold-up from happen no matter in the international level or the domestic level.Even the domestic policy system once leads to the reverse patent hold-up.However,at present,the relevant legal systems in China have begun to pay attention to balance the interests of the SEPs holders and SEPs implementers.The fourth part,“Reflections and Countermeasures of the Reverse Patent Hold-Up” provides some reflections and countermeasures.By analyzing the phenomenon of reverse patent hold-up from the perspective of risk and reality,it is possible for us to reflect on reverse patent hold-up and propose countermeasures from the aspects of credit principle,interest balance,injunctive relief,FRAND principle and standard setting organizations to build a clearer SEPs licensing process.It will not only promote the popularization and implementation of standards,and guarantee the probabilities of each SEPs implementer to enter the market,but also will ensure the enthusiasm for innovation of each SEPs holder.Most important,the continuous development of Chinese industries and the innovation and the reform of enterprises cannot rely on the support of domestic industrial policies for a long time.The most fundamental measure is to improve their own strength and continuously promote the development of new technologies.