The Research On The Legal Regulation Of The Injunctive Relief On The Standard-essential Patents

In the current wave of the 5G era,technology,network,and economy are developing rapidly.Knowledge economy is the foundation for the strength and foothold of enterprises and even the country.In the environment of global technological competition and development,patented inventions and property rights Protection is an indispensable means.From the beginning people applied for the technology of invention as a patent,exclusive enjoyment,special protection,and then more and more patented technologies,people began to incorporate patents into a unified standard,and no longer repeated research and development.And then to include this standard in the ranks of centralized license and license,the development of intellectual property has gone through such a process from immature to mature and gradually self-contained.Under the premise that patented technology has become more and more generalized and normalized,people are looking at a higher level-technical standards.The patents with development prospects and application value are selected from the patent pool.After artificial evaluation and integration,they have become a set of technical standards,which provide a basic reference for the subsequent research and development of patented technologies.Among them,standard essential patents,[Standard-Essential Patent,namely standard essential patent,abbreviated as SEP.It refers to the patent necessary to realize the specific industry standard.] It is a patented technical standard that involves a wide range of technical standards,has strong application strength,and has high technical requirements.Unlike patents understood in the general sense,a standard-essential patent is a high-level form of general patent.When an invention patent is incorporated into the standard by relevant organizations with certain rules and procedures,this patent becomes a standard-essential patent.This means that other market operators must compulsorily use a certain standard-essential patent in order to meet the requirements of the product technical standard when producing a certain product.The direct consequence of this objective requirement is that the standard-essential patent holder has greatly enhanced control over the patent right in his hands.In the subsequent implementation of the patent license,the patent holder will increase his discourse in the negotiation process between the two parties.The dominant position is strengthened.If the negotiation result does not meet the expectations of the patentee,and the royalty rate does not meet the requirements of the patentee,the patentee is likely to take advantage of the position and abuse the injunctive relief rights for their own benefit.Forcing patent users to make concessions on patent licensing fees.In recent years,lawsuits related to standard-essential patents have been increasing.As one of the core issues of standard-essential patents,injunctive relief is one of the core issues of standard-essential patents.Should the patentee be granted the right of injunctive relief? How to apply injunctive relief to the patentee? What kind of impact will it bring to patentees and patent users,whether there will be abusive remedies,and if so,what methods should be used to regulate and other issues have all aroused the attention of the practical and theoretical circles.And explore.In essence,the licensing of standard-essential patents belongs to the category of private rights.It should be based on the principle of fairness and voluntariness in market transactions,and the transaction rules should be determined by the transaction parties through independent negotiation.However,because of the monopoly and compulsory nature of the standard-essential patent injunction relief Sexuality,if not regulated,will disrupt the original market transaction order,so whether it is foreign or domestic,there is a set of rules for injunctive relief.However,due to the different national conditions of each country,the injunction relief system has different application methods in different countries.The FRAND principle is a common method internationally and adopted by most countries.[Fair,Reasonable,and Non-discriminatory,the principle of fairness,reasonableness,and non-discrimination,namely the FRAND principle.The formulation and application of this principle will limit injunctive relief to a certain extent,whether it is applying for relief or rejecting relief.However,the FRAND principle is only a general rule,which has guiding significance as a whole.Whether injunctive relief must be completely excluded,or injunctive relief must be applied,or specific analysis based on different case conditions.In practice,facing these complexities The limitations of the details of the patent will be highlighted.Just relying on such a broad and general rule of principle cannot deal with the behavior of other patent users.Therefore,other regulatory paths need to be explored.In our country’s judicial practice,there are few regulations on this issue,and there is no clear description of how FRAND applies to injunctive relief,and there is no clear way to determine the fault of the party.It is only mentioned in individual legal provisions,which leads to In judicial practice,it is difficult for judges to apply the law and the legal basis is not clear.In similar cases,different judges may have different judgments based on their own understanding.The lack of a unified legal standard for the resolution of injunctive relief related disputes will cause the trial to face many problems.Conducive to the long-term progress of the legal system and society.In this regard,the United States,the European Union and other places have encountered relevant cases very early,and the research on this issue has reached a more mature conclusion.Most of these countries support the granting of injunctive relief and believe that this is the patentee.A legal right that they deserve to support them to use this right to obtain corresponding damages through legal means.We can look for what we can learn and learn from the norms of the application of injunction relief in these countries,and we can neither apply blindly and completely,nor ignore them.Due to the characteristics of standard-essential patents,their natural monopoly objectively requires us to restrict them in many ways while granting injunctive relief.For example,the "four-element" standard derived from the US precedent considers the issue of granting injunctive relief from the source,and then considers the rejection of the injunction and the exemption of patent users from the perspective of the EU’s "safe harbor" principle..When granting an injunction,one must stand from the perspective of the patentee and consider the purpose of its application for relief,whether the subjective factor in using injunction relief is to protect the rights in good faith or malicious competition;when the patent right is infringed,the patentee shall apply injunctive relief Can it also recover the economic losses suffered;whether the patentee has followed the FRAND principle and other multiple factors.When the injunction is rejected,the patent user must consider whether he has paid a reasonable consideration for the standard essential patent,whether he has fulfilled the corresponding notification obligation to the patentee,and whether he has followed the principle of good faith in market transactions.,Whether it will cause irreversible losses to the patentee and other factors.On the premise of taking into account the interests of both parties,consider whether the act of granting an injunction will cause harm to the public interest,whether it will have the consequences of abusing its dominant market position,whether it will form a technology monopoly in a certain patent industry,whether it will Will inhibit social factors such as the enthusiasm for social innovation.After comprehensively considering various factors,and combining our country’s national conditions and judicial cases in practice,based on the principle that we can use compensation money to solve problems and not easily grant injunctions,we finally explored our own set of injunctive relief.The applicable law system of the People’s Republic of my country.