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Restriction of Patent Regarding Technology Standard

Author: YaoZuo
Tutor: ZhouYouSu;GaoJinKang
School: Southwestern University of Finance and Economics
Course: Economic Law
Keywords: technology standard patent anti-monopoly law
CLC: D923.42
Type: Master's thesis
Year: 2008
Downloads: 72
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Technology standard is one kind of or one series of files with some compulsory requirements and instructional performances, including specific technology requests and concerned technical project, aiming at making the product or service meet the demands about security and market admittance. Patent, as one of the objects of intellectual property right, is an exclusive right granted to inventors or devisers by state department legally.Traditionally, there is scarcely any relationship between technology standard and patent which is exclusive, regional and of timeliness. In contrast with patent, technology standard is characterized by general application, maturity and free, broad usage, which is gathered to avoid involving in patent technologies. But, with the development of advanced and new technologies, there is no ready general-purpose technology which can be collected as technology standard in the field of advanced and new technologies.All of the inventors of advanced technologies have strong consciousness of patent right protection, and their technology fruits almost are covered with patents completely. Therefore, standardization organizations have no choice but to negotiate with the patentees so as to gather patent technologies as standards within the advanced and new technologies.The restriction on the use of non-tariff measures to prevent the measures evolving into barriers to trade,is the important way to free trade for WTO. Members of WTO are required to make the most use of international technology standards as the limitation on technical measures to trade. That is to say, the use of international technology standards is not non-tariff barriers to trade,and accords with the requests of WTO. Since the validity of the use of international technology standards as technical measure to trade has been affirmed in relative agreements of WTO, members(especial developed country members)attach importance to the standardization of native patent technologies and the internationalization of native standards, striving to win the advantages in the international trade. A study upsurge on combination of intellectual property right and technology standard has also swept the research circle. In about 2000, some regions and countries like EU, USA and Japan, etc., have passed the intellectual property right standardization reports, which is the transition from basic research to application. All of the reports are characterized by the same developing mode from patent standardization to standard internationalization and then to international standard trade. The common theme of the reports is to discuss the interactive development between patents and international technology standards.It has not been long time since China started to reform and open and entered WTO. So far, the development of China’s independent intellectual property right and international trade has been at the beginning. Therefore,“patent within technology standard”, the issue involving in both intellectual property right law and international economic law, has not caught eyes of the domestic legists. In the area of advanced and new technologies in China, especially in the industries of digital products, mobile communication, internet and etc. demanding high compatibility, the international technology standards is the foundation of production, marketing, service supply and participate in the international competition. Because of the feeble basic study on the above issue in China, the industries starve for the strong support from the law theories to explore the way of technology obtaining patent, patent technology standardization, and standard license.There are four chapters in the article. ChapterⅠ“technology standard and patent right”discusses the concept, category, purpose of technology standard as well as the relationship between technology standard and patent right. ChapterⅡ“the abuse of patent right”introduces the varieties of abuse behavior, and the harm it might cause in the related industry. ChapterⅢ“the law regulation of the abuse of patent right”probes into the different ways the law regulates the abuse of patent right. Chapter IV“suggestions on restrictions of abuse in patent”discusses the available law restrictions that can prevent the abuse of patent right in China, which refers not only to the patent system itself, but the anti-monopoly law as well.

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CLC: > Political, legal > Legal > Chinese law > China and France > Intellectual property rights > Patent law
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