Disclosure of "Standard Essential Patent Information" and Perfection of Implied License System

The disclosure of "standard essential patent information" and the perfection of implied licensing system standardize the rights and interests of subjects who have not participated in the revision of standards, and determine who will decide whether undisclosed patents constitute SEP standards and patents, which is incompatible with the temperament brought from the womb. As a technical specification advocated and implemented by public organizations, standards aim at improving the quality of products and services, promoting interconnection and ensuring safety, and emphasize public interests; As a private right, the essence of patent is to exchange technical information for monopoly position, which is a means to stimulate and guarantee innovation. Standards should be popularized and the public should be encouraged to use and follow them; However, patents are severely monopolized and have strong exclusivity. Standard essential patents refer to patents that are included in international standards, national standards and industry standards and must be used when implementing standards. It is a special field of sharp opposition between standards and patents. On the one hand, potential implementers comply with the mandatory and recommended standards or the requirements of the industry to implement standards. On the other hand, the patentee is setting a huge trap to wait for the careless feet of the implementers. This is what we usually call patent hijacking, that is, if we don't follow the standards, there will be no market and no way out. If we follow the standards, we may encounter infringement lawsuits and face bans and huge compensation, which makes the implementers in a dilemma. Therefore, how to balance the public interests and the private interests of the patentee, and how to protect the rights and interests of the standard implementer and the patentee at the same time, we need to set up a system carefully and properly, so that the standard and the patent can survive and promote each other. The author will analyze the defects and perfection of the existing system and the above-mentioned system in China. China's existing conflict resolution regulations and ideas It is never easy to create a conflict resolution system, and the establishment of this system in China has been in the process of continuous exploration: "Supreme Court Reply No.4 in 2008" stipulates that as long as the patentee participates in the formulation of standards, it should be regarded as allowing others to use it, but the license fee is lower than the normal license fee. It can be seen that this is an expedient measure in the case that the public information disclosure system has not yet been established as a standard, and it has strong compulsion and public power priority. In 20 13, the National Standards Committee and the Intellectual Property Office published the Provisions on National Standards Involving Patents (Provisional), in which the second chapter marked that China began to attach importance to the establishment of the information disclosure system of standard essential patents, and made information disclosure the legal obligation of standard participants, but did not elaborate on how to take responsibility for those who violated the legal obligations. Article 85 of the Revised Draft of the Patent Law (Draft for Comment) issued on 20 15 stipulates the responsibility of those who violate their obligations and do not disclose their patent information, which is regarded as implied license. The license fee can only be settled through consultation and administrative means, but it cannot prevent others from using their patented technology. Recently, Interpretation II on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes, published by the Supreme Court in April 20 16, and Guidelines for the Determination of Patent Infringement, published by the North High Court in April 20 17, have determined that if the patentee has fulfilled the obligation of information disclosure, the implied license cannot be directly applied, but whether it should be prohibited should be judged according to the principle of fault. Through the above combing, it is not difficult to see our logic to solve the problem: in the process of standard formulation, standard participants have the obligation to declare and disclose the patents necessary for standard implementation, and then the implementer and patentee will discuss the licensing matters under the FRAND (fair, reasonable and non-discriminatory) principle. If the license cannot be reached, it cannot be banned unless the implementer is at fault; For unpublished patents, it is regarded as implied license, and both parties can only negotiate to solve the license fee problem. The idea of legislation is to construct such a system, coordinate and avoid the conflict between them as much as possible, and take care of the interests of the subjects involved as reasonably as possible. Everything is moving forward in exploration. So far, this system is still in its infancy, but there are still many defects to be improved.