Patent issues in the technical standards
|School||China University of Political Science|
|Keywords||Technology standard International standard Patent|
Technology standard is one kind of or one series of files with some compulsoryrequirements and instructional performances, including specific technology requests andconcerned technical project, aiming at making the product or service meet the demandsabout security and market admittance. Patent, as one of the objects of intellectualproperty right, is a exclusive right granted to inventors or devisers by state departmentlegally.Traditionally, there is scarcely any relationship between technology standard andpatent which is exclusive, regional and of timeliness. In contrast with patent, technologystandard is characterized by general application, maturity and free, broad usage, whichis gathered to avoid involving in patent technologies. But, with the development ofadvanced and new technologies, there is no ready general-purpose technology whichcan be collected as technology standard in the field of advanced and new technologies.All of the inventors of advanced technologies have strong consciousness of intellectualproperty right protection, and their technology fruits almost are covered with patentscompletely. Therefore, standardization organs have no choice but to negotiate with thepatentees so as to gather patent technologies as standards within the advanced and newtechnologies.The restriction on the use of non-tariff measures to prevent the measures evolvinginto barriers to trade,is the important way to free trade for WTO. Members of WTO arerequired to make the most use of international technology standards as the limitation ontechnical measures to trade. That is to say, the use of international technology standardsis not non-tariff barriers to trade,and accords with the requests of WTO. Since thevalidity of the use of international technology standards as technical measure to tradehas been affirmed in relative agreements of WTO, members (especial developedcountry members)attach importance to the standardization of native patent technologiesand the internationalization of native standards, striving to win the advantages in theinternational trade. A study upsurge on combination of intellectual property right andtechnology standard has also swept the research circle. In about 2000, some regions andcountries like EU, USA and Japan, etc., have passed the intellectual property rightstandardization reports, which is the transition from basic research to application. All ofthe reports are characterized by the same developing mode from patent standardizationto standard internationalization and then to international standard trade. The commontheme of the reports is to discuss the interactive development between patents andinternational technology standards.It has not been long time since China started to reform and open and entered intoWTO. The development of China’s independent intellectual property right andinternational trade has been at the beginning so far. Therefore, “patent withintechnology standard”, the issue involving in both intellectual property right law andinternational economic law, has not caught eyes of the domestic legists. In the area ofadvanced and new technologies in China, especially in the industries of digital products,mobile communication, internet and etc. demanding high compatibility, the internationaltechnology standard is the foundation of production, marketing, service supply andparticipance in the international competition. Because of the feeble basic study on theabove issue in China, the industries starve for the strong support from the law theoriesto explore the way of technology obtaining patent, patent technology standardization,and standard license.There are six chapters in the article. Chapter Ⅰ“Summary of technology standard”discusses the concept, category, purpose, and historical development of technologystandard as well as the status of international technology standard in international trade ,along with the reason and influence of combination of technology standard andintellectual property right. Chapter Ⅱ“Patent policies on standardization” introducesthe patent policies of the key international standardization organs and about the de factostandard, besides some cases about how to integrate patent and standard. ChapterⅢ“Standardization way of patent technology” analyses the component additions of“essential patent” within standards, on the base of which two routes of corporationpatent standardization have been summarized, one is corporation patent-spontaneousemergence of patent pool-industry de facto standard, the other is corporationpatent-national standard strategy-patent information disclosure-patent pool built upintentionally -national standard. ChapterⅣ“Patent license about technology standard”presents some contract matters concerned and especial law issues when patenttechnology is licensed as the standard. For instance, startup of the compulsory licenseprocedure, cross-license and share of patent technology, and the force adeffect of formatcontract applied to a blanket license, etc.. Chapter Ⅴ“The abuse of patent right andlaw regulation” probes into the bourn of the legal monopoly and the abuse ofintellectual property right as well as a variety of abuse behaviors. Chapter Ⅵ“Technology standardization strategy” analyses the character of standardization strategyin developed countries, on the base of which China’s response to three different kinds ofsituations has been summarized.