Research On Legal Regulation Of Holdout Of Standard Essential Patents

Relying on the background of economic globalization and international trade,with the rapid development of industrial technology standardization,the patent technology licensing between enterprises has become more and more specialized and complicated.Standard Essential Patent(hereinafter referred to as "SEP")is a patent form that combines with technical standards and is different from traditional patents.After entering the 21 st century,it has been gradually playing a vital role in developing and promoting high-technology such as mobile communication.The controversy surrounding SEP in the patent licensing market has inevitably increased dramatically,especially in the case of SEP hold-up and SEP holdout.The SEP holdout flourished in the early 21 st century.In recent years,it has hindered the effection of the patent licensing system,seriously threatened the development of the national innovation industry and the security of corporate patent licenses,and thus began to be important to patent law theory and practice worldwide.However,at present,the research on this issue is in its infancy in both theoretical part and practical part.This paper systematically interprets the legal regulation of SEP holdout from the perspective of strengthening the damage compensation for infringement litigation.This article includes an introduction,body and conclusion.The introduction part briefly introduces the main topic and significance of this research,reviews the existing research at home and abroad,and explains the research methods and innovation points of this paper.The body of this article is divided into the following five chapters.The first chapter aims to identify the connotation of SEP holdout.This chapter first examines the semantics of holdout and clarifies that SEP holdout is a business strategy implemented by SEP implementers for not paying or paying little patent royalty.Behavior patterns are characterized by delays in negotiation or non-payment of the royalty,and the form of expression are concealed.To ask why,the market incentives,the legal environment incentives and the characteristics of the subject itself have contributed to the frequent occurrence of SEP holdout,and the legal environment incentives have the most significant impact,including the relief pathways,high relief costs,the results of litigation are uncertain.In addition,the patent holdout and the patent hold-up are both related and different,and the distinction between the two concepts should not be confused.The second chapter explains the theoretical basis and practical dilemma of the legal regulation of SEP holdout.In terms of the theoretical basis,this chapter starts from the economic and legal attributes of SEP holdout.It points out that on the one hand,SEP holdout will detract from the innovation incentives of SEP patent holders,destroy long-term market welfare,and lead to economic inefficiency.On the other hand,SEP holdout has illegal liability,violates the honest principle of civil law and the principle of balance of interests in patent law.It's not only a contractual negligence in civil law,but also a patent infringement in patent law.So SEP implementers who are proved to implement holdout should be liable for contractual negligence or patent infringement.In terms of the actual dilemma,it is mainly reflected in the unreasonable results of the judicial referee royalty,the inefficiency of the procedures,and the inadequate injunctive relief and damages relief.The third chapter aims at the dilemma of the existing legal regulation of SEP holdout,proposes a scheme to optimize the legal regulation of SEP holdout--enhance the damage.For the threat of SEP holdout,the jurisdictional FRAND royalty has limited effects,and the injunctive relief is insufficient to regulate.Strengthening damages relief can increase the infringement cost of the SEP implementer and increase the expected income of the SEP holder,and not significantly increasing the risk of patent hold-up,is a good way to optimize the legal regulation of SEP holdout.Specifically,on the one hand,SEP implementer who impletment a holdout can be punished by introducing punitive damages,on the other hand,SEP holder can be compensated more fairly by strengthening existing compensatory damages.The fourth chapter introduces the practice of legal regulation of SEP holdout in the three jurisdictions including the United States,Japan and Europe.All the results have been sorted out and analyzed from legislation,judicial practice and administrative advice.On the whole,the main way of extraterritorial legal regulation of SEP holdout is injunctive relief,and there is insufficient attention to damage relief.In judicial practice,there is no judgment that exceeds the FRAND royalty for damages.In the past two years,legal practice has begun to pay attention to the risks brought by the holdout of SEP.The association between patent hold-up and patent holdout has also been fully taken into account.The criteria developed by the court in the issuance of the injunction to judge the malicious SEP implementer are the reference for determining the amount of damages.The fifth chapter intends to find a path being coordinated with Chinese national conditions on how to regulate the holdout of SEP.This chapter starts from the background of China's regulation of SEP holdout.In view of China's in-depth implementation of innovation-driven development strategy at the national strategic level,Chinese innovative enterprises face the opportunities and challenges of “going abroad” at the enterprise strategy level.The regulation of holdout is an urgent task.At present,judicial practice of regulating SEP holdout has appeared in China.Although the overall situation shows the uncertainty of injunctive relief and the insufficiency of damages relief,it also reflects the positive protection of the country's innovative industries.China should cater to the existing trend in order to improve the level of legal regulation of SEP holdout by introducing punitive damages in legislation,paying attention to the reasonable royalty multiples and the application of discretionary compensation in the judicial period.