Research On Anti-monopoly Regulation On Abuse Of Market Dominance By Standard Necessary Patentee

In the context of economic globalization,as an important strategic weapon to enhance the core competitiveness,standard essential patents have gradually become the strategic commanding heights pursued by all countries.As a product of "technology patenting,patent standardization,and standard globalization",the contradiction between patent privatization and standard commonweal property of standard essential patent has aroused widespread concern in judicial and academic circles at home and abroad.Patent standardization can not only improve industrial efficiency and promote scale economy,but also give birth to market monopoly and bring tense conflicts.Improper coordination will inhibit technological innovation and industrial development.In the new wave of scientific and technological revolution,the trend of patent standardization will be further intensified.With the emergence of 5G,Internet of things,artificial intelligence and other new economic formats,the huge market volume will inevitably give birth to a new round of standard necessary patent war.At present,Chinese enterprises represented by Huawei are gradually becoming the leading force of 5G standard essential patents.In the future,Chinese enterprises will inevitably face anti-monopoly litigation or anti-monopoly investigation in the implementation process of 5G standard,and the cases of abuse of market dominance by the standard essential patentees will follow.In order to achieve the goal of balancing,encouraging innovation and maintaining competition,we need a rigorous case handling method,clarify the regulatory object,clarify the regulatory scale,straighten out how the anti-monopoly law should timely intervene and specific regulatory path.This paper is divided into four parts.Firstly,the basic theory of anti-monopoly regulation on abuse of dominant market position by SEP obligee is clarified.Starting from the two elements of standard and patent,this paper interprets the concept of SEP and explores its particularity.The anti-monopoly regulation of SEP is related to maintaining fair market competition and encouraging innovation.From the value level between SEP and anti-monopoly law,we should straighten out the relationship between SEP and antimonopoly law,correctly understand the conflict of interest between them,measure and coordinate their value,so as to clarify the target choice of SEP anti-monopoly regulation,and pave the way for the following.Secondly,based on the "U.S.FTC v.Qualcomm monopoly case" as the breakthrough point,through the analysis of the dispute focus of the case,it leads to the hot and difficult problems in anti-monopoly regulation of SEP rights holders’ abuse of market dominant position.Then,following the basic logic sequence of "defining the relevant market whether occupying a dominant position in the relevant market-abusing the dominant market position" as the basic logic order of the antimonopoly law,this paper analyzes the process in which the anti-monopoly law determines that the abuse of the dominant market position constitutes a monopoly.Then,it combs the legislative status quo of China’s anti-monopoly regulation of SEP right holders’ abuse of market dominant position,combined with the analysis of China’s existing judicial practice,points out the existing problems in this field.In defining SEP related markets,China relies too much on the direct derivation of the particularity of SEP and does not consider the impact of dynamic competition brought by innovation factors,which will easily lead to enterprises with SEP easily involved in anti-monopoly investigation and inhibit the development of technological innovation.Market share is only one of the characteristics of market dominance,and high market share does not necessarily prove market dominance.It is not possible to directly infer that the SEP obligee has a dominant market position according to Article 19 of the antimonopoly law.The factors of determining the market dominance in Article 18 of the anti monopoly law and the anti monopoly guide on intellectual property rights are not enough to comprehensively evaluate the constraints faced by SEP obligees.It is also necessary to consider them comprehensively in combination with individual cases in practice.The abuse of dominant market position by SEP right holders is mainly manifested in refusal of permission,unfair high price and tie-in.Therefore,the anti-monopoly authorities should be cautious and comprehensively measure the anti competitive effect and promoting competition effect.Finally,in view of the problems existing in the anti-monopoly regulation of the abuse of market dominant position by SEP right holders,this paper provides practical ideas and suggestions for the effective implementation of the anti-monopoly guide in the field of intellectual property rights.The antimonopoly law should include the intellectual property owners’ exclusion and restriction of competition within a reasonable scope,timely intervene in intellectual property disputes to maintain the market fair competition order,and balance the relationship between encouraging innovation and maintaining competition.In view of the complexity of SEP cases,we should define the market related to sep statically and dynamically,and unify the requirements for determining the dominant market position of SEP obligee.At the same time,it is also necessary to improve the regulation method of specific abuse behavior.The key facilities theory should be introduced to apply to the regulation of SEP refusal,the SEP license fee under FRAND commitment,and the exemption of SEP tying sale should be listed,so as to clarify the basic principles and methods of anti-monopoly analysis of SEP cases by judicial authorities and law enforcement agencies,and provide reasonable expectations for operators to implement standard behaviors.