Research On The Boundary Of Anti-Monopoly Law Regulating The Abuse Of Standard Essential Patent

With the continuous updating of patented technologies and the continuous advancement of standardization,standard-essential patents themselves not only possess the power attributes due to patent rights,but also bear the burden of promoting the implementation and promotion of standards and improving the overall level of technological innovation in society.However,the standard-essential patent system has also spawned a series of problems.In judicial practice at home and abroad,abuses of standard-essential patents have emerged one after another and manifested in various forms,but almost all abuses revolve around the core of asking for high license fees.At present,the mainstream views and practices regarding the abuse of standard essential patents all use anti-monopoly analytical thinking and regulatory methods to define the behavior of the patentee as an abuse of market dominance.In fact,when defining the abuse of market dominance,it is necessary to base on the relevant identification factors listed in the Anti-Monopoly Law,and to conduct a detailed analysis in conjunction with the specific circumstances of the standard essential patents and the case,rather than relying solely on standards.The essential patent holder’s market share is inferred to enjoy a dominant market position.In addition,the current anti-monopoly regulatory path is very complicated in the process of analysis and demonstration,and the legal effect also has great limitations.Therefore,this article intends to explore whether there are better regulatory paths and innovative mechanisms to solve the problem of abuse of standard essential patents outside of the anti-monopoly law.Aside from the introduction and conclusion,this paper could be breaked into three chunks.The first chapter mainly enumerates the types of abuses of standard-essential patents in current judicial practice.The abuses in this part are not repeated one by one.Instead,they mainly introduce representative refusal of licenses,unfair high-priced licenses,and abuse of injunctive relief.behavior.Regarding the abuse of injunctive relief,there is currently no specific regulatory document in my country’s legislation,but cases of abuse of injunctive relief represented by "Huawei v.IDC" have emerged,which should be taken seriously.The second chapter mainly discusses the limitations of the current cases of abusing SEPs without considering other regulatory paths and directly applying the"Anti-Monopoly Law".The analysis process of applying the "Anti-Monopoly Law" in determining whether it has a dominant market position is very complicated.The essence of all abuses is almost to request high license fees and consolidate the market position of the patentee.Directly using the "Anti-Monopoly Law" cannot directly determine the specific amount of reasonable license fees,nor can it fundamentally solve the problem..In addition,the use of the "Anti-Monopoly Law" regulation will impose huge fines on the patentee,which is likely to reduce the enthusiasm of the patentee to join the standardization organization,delay the implementation and promotion of the standard,and consumers may not be able to obtain the latest updates in time.Scientific and technological achievements and commodities.In this regard,this article puts forward an idea in Chapter 3,trying to apply the private legal system first in the face of cases of abuse of standard essential patents,rather than directly applying the "Anti-Monopoly Law."This paper first introduces a "Baseball-style" arbitration mechanism that is as close as possible to the Frand principle in determining the amount of patent royalties.Then it introduced the FRAND negotiation guarantee system between Germany and the European Union,hoping to learn from the negotiation process between the two parties in the future standard-essential patent licensing.In addition,this article also explores the possibility of using the "Contract Law" to solve this problem.However,due to the differences in the system and content of my country’s contract law,there are still great obstacles.Finally,this article analyzes from the perspective of the Patent Law and demonstrates the implied patent licensing system and the patent anti-monopoly compulsory licensing system to regulate the theoretical basis of the abuse of standard essential patents and the specific procedures and detailed requirements for application.It is undeniable that the anti-monopoly law has a deterrent effect in cases of abuse of standard essential patents,but we should also be aware of the superiority of private law such as contract law and patent law,and explore the introduction of arbitration mechanisms and FRAND license negotiations before litigation.The significance of the mechanism is that in the FRAND license negotiation process,the patent implementer’s corresponding guarantee for the license fee in advance can escort the conclusion of the license agreement and minimize the occurrence of abuse of injunctive relief.Due to the natural monopolistic nature of patent rights,in the face of the abuse of standard essential patents,people are often used to label the behavior as monopoly when evaluating the behavior,so that the abuse problem in current judicial practice tends to present a monopolistic appearance.For abuses that exceed the boundaries of intellectual property rights,directly using the anti-monopoly law to regulate them cannot solve or prevent the occurrence of such behaviors from the root cause.In judicial practice,in the face of disputes caused by the abuse of standard essential patents,it should be noted that the private law system represented by contract law and patent law,as well as arbitration and negotiation mechanisms,are also highly qualified and operable in resolving such issues.Therefore,when facing the issue of the abuse of standard-essential patents,it is necessary to leave the necessary space for the autonomy of private law,instead of directly applying the "Anti-Monopoly Law" and other public power methods to intervene.