强制性国家技术标准与专利权关系研究报告

Abstract:

With the development of economic regionalization and globalization all over the world, and with the increase of challenges of modern science in the field of production and trade, there is a phenomenon that technology standards are combined with patent rights. The facts prove that this combination is the logical result of the development of scientific technology and social economy, which can improve their market power, might while can also bring a series of patent disputes. The national standards are the kind of standards with the highest level of effectiveness and the widest influence in our standard system, which reflect the social benefit. Once there appear these patent disputes in the process of constituting and carrying out the national technology standards, great disadvantages will be brought to national security, people’s health of life and social benefits. If we want to solve the disputes between national technology standards and patent rights, we must combine the improvement of our standard system with the promotion of patent system while we must integrate laws with administrative rules and regulations and related judicial explanation to program the entire system properly.

In view of this, we drew up our reports to study of the relation between national technical standards and patent rights, and analyze the patent disputes when they probably occurred in process of the constituting and carrying out the national technical standards. In doing so, we should combine the real realities of our country with the advance experience abroad in order to find the ways of solving these patent disputes, which can provide appropriate ideas for our related legislation. At the same time, what was to add was about the subject of our task. At first, our subject was “the Relation between national compulsory standards and patent rights”. But later, after we inquired of the related experts about it, they also thought this statement was not absolutely accurate. The reason was as follows: according to effect scale, standards consist of several groups of national standards, industry standards and enterprise standards while according to the existence of obligation of standards, standards can also be divided into compulsory standards and recommended standards. As a result, our national standards consist of recommended national standards, and national compulsory standards, which also include national compulsory standards and obligatory industry standards. From this, it was clear to see that our standard system is obviously different from the standard system of the developed countries abroad. So considering the purpose of establishing the subject and the needs of our standard system reform, our reports were studied about our national standards.

Our reports consist of the following tow parts, one general report with its attachments and several sub-reports. The general report is divided into four parts.

The first part is “Combination of technical standards and the patent right” .It mainly aimed at the relationship between national technical standards and the patent right. The general report analyses the reason of the combination of technical standards and the patent right and gets three conclusions: （1）With the development of scientific technology and social economy, the technical standards are necessarily combined with the patent right, especially in the fields of high-tech;（2）While researching the relationship of technical standards and the patent right, it must consider the benefits of such three subjects. the lawful benefits of the patent holders, the right of the standardization organization formulating and enforcing the standards and the benefits of the public, or in a other word, the user of the standards. It is not good to ignore any of the subjects’ benefits.（3）The standardization organization needs to formulate its corresponding patent policies which could correctly restrict and guide the conduct of the patent holders when they exercise the right of patent in the standards. In case of the nature of the standardization organization, it cannot entirely undertake the responsibility of restricting and guiding the patent holders. In stead, it need to cooperate with administrative authority, avoiding the situation that the benefits of the patent holders are firmly squashed or the normal formulation and enforcement of the technical standards are obstructed in order to uphold the benefits of the patent holders. Our report analyses how the patent right combine with the technical standards and summarize the problems that could easily come to. First of all, if the patents in the standards are unauthorized, the users of the standards will fall into trouble. Secondly, the standard could not come into existence if the patent holders refuse to license the related patents. Thirdly, during the formulation of the standards, the patent holders will not disclosure the information about the patent right intentionally in order to get unjust enrichment. Fourthly, some of the patent holders may boycott the standard users making use of the standard. Fifthly, the abuse of patent right may take place in the cross-license and patent pool. In term of the national technical standards, it is easily cause the first three problems.

The second part is “The research of the patent policies on national technical standards in USA and EU”. It mainly focuses on analyzing the foreign national standard system and corresponding patent policies. First of all, after research, we find that the definition, classification and formulation mode of the national technical standards in our country differ from the system generally adopted by the developed counties, especially most of the developed counties don’t use the concept of national compulsory standards. If we search information according to the key words of national compulsory standards, we would find no more valuable data, in doing so, we expand the research area to national compulsory/voluntary standards. We respectively collect the patent policies of national voluntary standards in USA and EU, analyze the mode of its transformation from voluntary standards to compulsory standards, and display the national standards system of USA and EU, and the key points of their patent policies. In this part, we finally analyze the cause of formation of the patent policies, and come into a conclusion: the patent policies of the USA and EU standardization organizations adjust to their standardization system, while the construction of their standardization system adjusts to such countries’ social economy condition, the development of scientific technologies, overall law environment. If we entirely ignore the difference between our country’s standardization system and that of USA’s and EU’s, totally blink our country’s characteristic of social economy, law and technology development, copying the developed countries’ patent policies would lead to such result that because we cannot effectively prevent and properly resolve the patent dispute, the formulation and enforcement of our country’s national technical standards are severely hindered.

The third part of the general report is “The system of national technical standards and the study of the patent policy”, it begins with the general introduction of the system of the national technical standards, in this part, we analyze and summary the present patent policy of the national standards, expounding some unreasonable policy in detail. In term of the present patent policy of the national technical standards, our opinions are as follows: （1）It is unreasonable to exclude patented techniques from national standards;（2）Standards Administration Committee People’s Republic of China should formulate more tough policy in the national voluntary standards;（3）Without Antitrust Law, Standards Administration Committee and the Patent Office of  the People’s Republic of China should undertake more responsibility in order to ensure the formulation and enforcement of the national standards. We consider that the patent policy of the national standards should coordinate the standardization system of a country, and the system should reflect the feature of scientific technology, social economy, institution of law. On the basis of them, we put forward three scheme, analyzing the points, advantages and disadvantages respectively, to provide a reference to legislation administration.

The fourth part discusses the attack to national technical standards after the patents are brought into the standards, and the possible amendment of patent law. In this part, we make the possible patent disputes as point of penetration, analyze the mode and reason of such patent disputes, and design the legal ways of resolving these disputes. First of all, our report suggests that we should resolve the attack between the patent right and national technical standards by means of perfecting the examination of the patent of invention and of using the administration legislation, regulations and the system of invalidity examination in patent law. Secondly, our report suggests that it could resolve problem by means of perfecting the system of the substantive examination that the formulation and enforcement of the standards are influenced as the patent technologies in the national technical standard are not definite. At last, on the basis of the three schemes about national standard system and its patent policies designed in the third part of the general report, the report put forward the ways how to resolve problem that the formulation and enforcement of national technical standards are influenced because of patent holders’ refusal licence by means of the patent obligatory licence system, agency by commission contract and mediacy contract as well as anti-trust examine on the abuse of the patent right.

In order to make three projects of our reports perfect, we reduced our projects to several main issues by means of forms mode in enclosure one of our general reports. At the same time, in order to make the amendment of patent act and its related institution of law, we summed up the original regulations, statements of amendment and analysis of advantages and disadvantages in forms mode in enclosure two of our general report.

Finally, for the lack of the space in our general report we can not expand our reports perfectly, so we explain them in detail in our several partial reports.

Key Words: national compulsory/recommended standard; patent right; disclosure duty; RAND licence; obligatory licence

前言

随着世界经济向区域化、全球化方向的发展以及现代科学技术在生产、贸易中作用的日益凸现，出现了技术标准与专利权相结合现象。事实证明技术标准和专利权的结合是科学技术和社会经济发展的必然结果。技术标准和专利权的结合可以提升二者的市场影响力，但同时也带来了一系列法律纠纷。就目前而言，技术标准与专利权结合后容易产生的法律问题主要包括：1.出现在技术标准中的专利技术是没有获得专利权人许可的，导致标准使用人无可适从；2.专利权人拒绝许可导致技术标准无法出台；3.专利权人在标准制定过程中故意不披露相关专利权信息以获取不正当利益；4.专利权人利用标准制定进行联合抵制；5.交叉许可和专利联营中的专利权滥用问题。就国家技术标准而言，主要容易出现前三种法律问题。

国家标准是我国的标准体系中效力层次最高、影响最广、最体现社会公共利益的一类标准。一旦国家技术标准的制定和实施中出现专利纠纷，则可能会给国家安全、人民生命健康以及社会公共利益带来巨大的不利影响。要妥善地解决国家技术标准与专利权之间的冲突必须将我国标准体系的改进与专利制度的完善相结合，必须综合运用法律、行政法规、行政规章以及相关司法解释等法律渊源进行全面合理地规制。

有鉴于此，本报告拟就从技术标准和专利权结合的原因和方式入手，廓清国家技术标准与专利权冲突的表现，重新界定强制性国家技术标准与推荐性国家技术标准，再对美国、欧盟等相关标准化组织的专利政策和配套立法司法措施进行详细地考察，概括其要点并分析其产生的原因，最后结合我国科学技术、社会经济条件以及标准体系的特点，对我国国家标准体系及其专利政策进行规划，并分析该规划中可能出现的对专利制度的修订情况，进而提出具体的修改方案。

第一部分