The Research On Injunctive Remedy Of Standard Essential Patents From The Perspective Of Anti-monopoly

The Standard Essential Patents are the product of the combination of technical standards and patents.At present,the discussion of Standard Essential Patents around the world is based on the international standards,including both encouragement and constraint.On the one hand,the standard essential patents are still patented in nature,and the patentee has the right to stop the infringement by means of prohibitions.On the other hand,the Patents entered the standard may contain public attributes.When the right holder actively exercises the injunctive relief,it is possible to produce the effect of restricting competition,that is,the problem of monopoly.Therefore,the application of injunctive relief in the standard essential patent has become a hot issue.at this time,the question of whether injunctive relief can be applied to the standard essential patent,how it is to be applied,and the role played by the FRAND principle is of great importance.there are complex issues in the injunctive relief of Ordinary patent such as the "four elements of rules " of the United States.The standard essential patent also possesses the private property of the patent and the standard public property,and the monopoly nature of patent rights is greatly enhanced by the role of standards.And the standard essential patent holder made the FRAND commitment prior to including his patent in the standard.Xidian v.Sony and Huawei v.IDC are the typical cases of the emerging field of China 's standard essential patents,which provides a solution for China' s disputes over the standard necessary patent disputes.This article uses the method of case analysis and comparative study to introduce the two typical cases that have occurred in the judicial field in our country and to study the formation,development and improvement of the application of the injunction in the standard essential patents in the United States,Germany and the EuropeanUnion.Analyzes the anticompetitive effects and theoretical controversies existing in the application of the injunction and the advantages of our contry's law in regulating the application of the injunction remedies,Put forward to anti-monopoly rules to improve our standard necessary application: First of all,it is necessary to distinguish the "existence of rights" and "exercise of rights" of the injunction remedy of standard essential patentees,and to clarify the boundary between the IP and antitrust laws;Secondly,it is necessary to balance the application of patent injunction relief and antitrust law,clarify the restrictive conditions for injunction relief and improve the mechanism of antitrust rules;Thirdly,integrating the relevant laws and regulations of our country,perfecting the existing legal norms system and laying the foundation for the development of our country 's standard essential patents at the system level;Finally,encouraging our enterprises to actively carry out patent innovation,and actively participate in the formulation of standardization work,to the implement of patent technology standardization strategic layout.