Anti-monopoly Regulation Of Abuse Of Injunctive Relief Of Standard-Essential Patents

In the course of the development of knowledge-based economy,the combination of standards and patents is increasingly widespread and frequent,more and more patented technologies appear in technical standards,which make both market influence growing.However,once a SEP is abused,it can easily facilitate the implementation of monopoly by enterprises,form the market monopoly,create effects of eliminating or restricting competition,and cause the formation of international trade barriers.Thus,it is necessary to apply anti-monopoly laws to regulate the abuse of the SEPs.It is precisely for this reason that all countries in the world have started to regard the regulation of the abuse of SEPs as an important part of anti-monopoly laws.The United States and the European Union are the most active regions in the world in terms of standard setting,therefore,their practical experience in regulating the abuse of injunctive relief of SEPs is relatively more abundant.In recent years,our country began to pay attention to the issue of SEPs,and the anti-monopoly laws and regulations on the abuse of injunctive relief of SEPs are still in their infancy,which have many deficiencies.Therefore,on the basis of practical experience of the United States and the EU,our country should establish the conditions of the abuse of injunctive relief of SEPs.Under the existing anti-monopoly law system,we should improve the “Anti-monopoly Law Restriction Guidelines about the Abuse of Intellectual Property”(The Draft),introduce the licensing negotiation model beforethe injunction take effect,and set up the specific anti-monopoly law enforcement agency in intellectual property area,so as to realize an effective restriction on the abuse of injunctive relief of SEPs.In addition to the introduction,this thesis is divided into five parts: The first chapter begins with a landmark case of Huawei v.ZTE case of Court of Justice of the European Union,by briefly reviewing the case and analyzing the legal disputes in the case,the thesis leads to the topic of study,and then put forward the issue whether the SEPs holders' injunctive relief application constitutes the monopoly.After clarifying the concept of the standardization,the SEPs and injunctive relief and the market influence of the combination of standards and patents,the thesis elaborates the controversy of the academic community of injunctive relief of SEPs arising from the theory and practice after aware that the SEPs holders may use injunctive relief to implement the patent hold-up or to eliminate or restrict of the competition.The second chapter analyzes the legitimacy and illegality of the SEPs holders' application for injunctive relief.Considering that the injunctive relief is one of the remedies that the patentee may seek in case of patent infringement in patent law of every country,the SEPs holders,as patentee,should enjoy the right to injunctive relief.However,based on the hidden danger of the abuse of injunctive relief right,it is necessary to impose reasonable application conditions.In addition,although the legal nature of the FRAND commitment is inconclusive,it is undeniable that the F/RAND principle is relevant to the parties' negotiation and the judicators' justification of the terms of transaction,and therefore the SEPs holders who violate the FRAND licensing commitments may constitute the abuse of injunctive relief rights.On the other hand,it is possible that the SEPs holders,with its strong market power and easier access to market dominance,may use the injunctive relief as a weapon to implement patent hold-up,thus may abuse its dominant market position and undermine the rights of consumers and the public interest,therefore the anti-monopoly regulation is necessary.The third chapter specifically discusses the criteria of the abuse of injunctive relief of SEPs holders in the anti-monopoly law.The establishment of anti-monopolydefense proposed by the standard implementers starts with the abuse of dominant market position,it is necessary to prove that the SEPs holder has the dominant position in the relevant market and that his application for injunctive relief constitutes abuse.Taking into account the FRAND licensing commitments referred to in the SEPs,the thesis elaborates the specific behavior of the SEPs holders in applying for the injunctive relief and the standard implementers in applying for anti-monopoly defense,so as to make it clearer whether the application of injunction constitutes abuse.The fourth chapter examines the experience of the regulation of the abuse of injunctive relief application of the US and the EU,reviews the relevant legislation and the conditions for the issuance of the injunction established in the patent infringement cases of Apple v.Motorola and Microsoft v Motorola in the US,the anti-monopoly defense rules of Orange Book Standard case,the safe harbor rules established in the case of Motorola v.Apple and the conditions for the issuance of the injunction established in the case of Huawei v.ZTE in the EU.Based on the comparative analysis of the practical experience in the EU and the US,this chapter summarizes the enlightenment of the experience of the EU and the US on the abuse of injunctive relief.The fifth chapter discusses the perfection of the legal system for the abuse of the injunctive relief by the SEPs holders in China.This part firstly introduces the status quo of anti-monopoly laws and regulations of the abuse of injunctive relief of SEPs in China,and then puts forward the suggestions to perfect the anti-monopoly regulation of the abuse of injunctive relief of SEPs from the aspects of legislation,judicature and law enforcement according to the status quo of our legislation and judicial practice.