对标准专利权滥用的法律规制.doc

第一篇 概论 专利许可、标准化与反垄断的三角关系论 张乃根* 专利许可三角底线标准化反垄断处于两边线并且，由于专利许可的缘故，使原的标准化与反垄断问题在三角内交叉，形成了特殊关系。是专利制度的重要组成部分标准化是现代工业不可缺少的组成部分。由于涉及专利技术的标准出现，使用标准需要获得专利许可。知识产权许可反托拉斯指南inequilaterally triangle indicating the relation among patent license, standardization and anti-monopoly. Within this triangle, patent license takes the bottom line while others are subjected to sidelines and across each other due to patent license, because there is no relation between standardization and anti-monopoly if they are not related to patent license. Patentees have rights to make licensing, which is traditionally composed of essential part of patent system. Technical standard is commonality, which plays important role in modern industries. Only emerges patent-related standards, essential patents are necessary to implement the standards. Anti-monopoly is regarded as a core of modern market economy. Patent license is market transaction, therefore inevitably related to anti-monopoly. Secondly, it is focused on institutional observation of triangle relations in the United States, EU, China and international organizations. Patent law in the United States, which has traditional strong legal status in triangle relation, protects the rights of patent licensing rigidly. ANS is voluntary consensus technical standard made by ANSI, a non-governmental membership organization. The patent policy of ANSI prefers more protection of patent rights. There are no expressed provisions regarding standard setting and regulation of patent license in “Antitrust Guideline for the Licensing of Intellectual Property” with underlying flexible antitrust policy in the respect of patent licensing in standardization. The patent protection has also solid legal basis in EU as well as its Member States. EU regional standardization organizations, CEN, CENLEC and ETS coordinate the development of European Standards, which are accepted by relevant countries and adopted voluntarily by industries