谈专利和技术冲突法律解决方案

【Abstract】wWw.shuoshilunwen.com The integration of patent technology and technology standard is an inevitable tendency in knowledge economy age. The patent right falls into private rights and demonstrates the characteristics of monopoly whereas technology standard is public and open, for which reason there is a essential conflict between them. Patent is being abused by virtue of technology standard and the integration of these conflicted two matters, which result in the non-publicity of the patent information during the development process of technology standard, refusal to license a patent, the high licensing, patent tie-ins, joint ventures and malicious litigation and many other issues which impede free competition and undermine the market competition order. Moreover, patented technology will be promoted thanks to the incorporation of patent into the standard, accordingly expands the market and forms monopolies in relevant market.Currently, most of countries via anti-trust law, "prohibition of abuse of patent rights", compulsory licensing and anti-unfair competition law to solve such problems, however, these legal programs still he some defectiveness. Regulation about the abuse of market dominance in Anti-trust Law requires that the right owner has the dominant market position of which the "relevant market" is difficult to identify; " prohibition of abuse of patent rights "is so abstract and principled which leads to poor maneuverability; the conditions of patent compulsory licensing are so harsh and only for the particular cases that does not he universal significance; anti-unfair competition law is only a partial solution of the problems above-mentioned, of which the intensity is not enough. Furthermore, these methods of remedies afterwards aforesaid also consume too much.It is clear that the existing legal system is incapable of solving the issues arising from integration of the patent and technology standard perfectly, accordingly, it is a necessity to introduce a new system in the field of patent law, namely, the patent statutory licensing system, to restrict patent rights. It bases deeply on economic, legal philosophy and sociology that implement the statutory licensing of patents incorporated into the technology standard which not only both ensures the quality and performance of product and maintains competition in good order in this area, but also reduces transaction costs and conforms to the existing framework of patent law. Moreover, the implementation of the statutory licensing of patents incorporated into the technology standard may nip these problems above in the bud, which on the basis of respect for and protection of patentee, maintains market competition in good order, is the best trails to balance the interests of the patentee and the public interest.