Study On The Injunctive Relief For Standard-essential Patents

Unlike ordinary patents,standard essential patents are patented technologies incorporated in the standard.Once a standard-essential patent is formed,any operator must use the standardessential patent in order to meet the requirements of the standard.The standardization of patents has greatly strengthened the status of standard-essential patentees in the negotiation of patent licenses,leading to their tendency to abuse injunctive relief.How to determine the criteria for a standard-essential patentee to be able to apply for injunctive relief,to solve the problems of regulating the application of injunctions,restrictions on injunctive relief,and the relationship between injunctive relief and abuse of market dominance,has caused hot discussion in the theoretical and practical circles.Generally speaking,the negotiation of a license between a standard-essential patentee and a licensee should be based on the FRAND principle to ensure that the basic transaction is fair.FRAND commitment contains three elements of "fairness,reasonableness,and nondiscrimination".The application of the FRAND principles and the determination of related issues will have an impact on the application for injunctive relief.Through the research on the current situation of our country’s legislation and judicial practice,we find that China’s legal provisions on standard essential patent ban relief are not specific,too vague,and lack reasonable interpretations.China’s Anti-Monopoly Law does not explicitly provide for the application of the injunctive relief,but the Anti-Monopoly Law has been applied in practice to regulate the issuance thereof,which has led to some problems,specifically: the FRAND principle cannot play its due role.It’s hard to bind both the patentee and the licensee by the FRAND principle in the negotiation,and the judiciary is also put in difficult position when disputes arise.Aiming at the application of the patent ban relief of standard essential patents,China can learn from the "Four Elements Inspection Standard" established by the US eBay case and the "Five Steps + Three Reservations" rule proposed by the European Court of Justice in the case of "Huawei v.ZTE" to improve China’s SEP regulation.from the two aspects,namely,the granting of injunction and blocking the injunction.From the perspective of the patent holder,when granting the injunction,it is necessary to combine the patentee’s subjective factors and consider the public interest;from the perspective of banning the injunction,the potential licensee may seek the ban on the premise of observing the principle of good faith.At the same time,the relationship between the injunction and the abuse of market dominance should be clarified,The rules shall also clarify under what circumstances the injunction should constitute a factor in the abuse of market dominance,and impose implied licensing obligations onstandard essential patents holders.