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Standard-essential patents (SEPs) are closely linked to technical standards and have the nature of public products. The combination of patents as private property rights with technical standards as public goods magnifies the exclusivity of patent rights, may hinder the application of technical standards and gives rise to a large number of legal disputes. Two solutions have been developed to alleviate this tension: a strong protection model that emphasizes the property rights nature of patents and a sharing model that emphasizes the public goods nature of technology standards. However, both options are detrimental to the efficiency of the allocation of technological resources and have led to conflicts in judicial decisions worldwide. To reconcile such conflicts, the courts should interpret the fair, reasonable and non-discriminatory principle flexibly according to the status of the parties to re-establish an equal relationship between SEP holders and technical standard implementers, thereby promoting the parties’ voluntary conclusion of patent licensing contracts. Effective measures include strengthening the obligation to negotiate licences between SEP holders and technical standard implementers and applying the principle of good faith to avoid ‘patent blackmail’ by patent holders and ‘reverse blackmail’ by technical standard implementers. Moreover, courts should be careful when deciding whether to adjudicate global licensing matters between parties to avoid judicial deadlock. These measures will ultimately contribute to the sustainability of technological resource creation and exploitation.
Liguo Zhang (Thu,) studied this question.