标准必要专利产生背景、运行机制与影响:文献回顾与研究展望

Background, Operating Mechanism and Influence of Standard Essential Patents:Literature Review and Research Outlook

专利私有性和标准公共性的属性交互使得具有战略价值的标准必要专利成为学者们关注的学术热点。在回顾2008—2019年国内外标准必要专利相关文献的基础上,分析了标准必要专利的产生背景,运行机制及各主体之间的相互作用和标准必要专利带来的作用与影响,建立了包括原因(Why)、主体(Who)、过程与机制(How)、结果(Result)的整体研究框架,总结了目前研究框架还存在的不足之处,提出了标准必要专利在未来的学术研究还需要解决的现实与理论问题。

Abestract:The interaction between the proprietary nature of patents and the public nature of standards makes standard essential patents with strategic value an academic hot spot for scholars.Although some scholars have studied standard essential patents,there is a lack of systematic sorting and the discipline distribution is scattered.From the perspective of the disciplines involved in previous scholars’research,it mainly involves law,management,economics and information science.In the process of combing existing scholar research literature,this paper makes a systematic analysis according to the background,the operating mechanism and the influence,constructs including reasons(Why),the main body(Who),the process and mechanism(How),the results(Result)integrated framework,sums up the current research hotspot of standard essential patents,analysis the research trend of standard essential patents,and puts forward the future research issues.This paper mainly uses the literature analysis method,firstly,the standard essential patents literatures of 2008-2019 from CNKI,Google Scholar,Web of Science,Elsevier and other databases were searched;Secondly,the literatures was manually screened;finally,the remaining 262 literatures after preliminary screening were systematically reviewed and summarized from three aspects:their background,operating mechanism and the influence.From the perspective of the background of the generation of standard essential patents,it is mainly dominated by multinational corporations and large enterprises,and usually occurs in technology-intensive industries with high requirements for interoperability.At the same time,the openness of a country and whether the patent legal system guarantees the rights of the patentee of standard essential patents will also affect the generation and development of the standard essential patents of the country.From the perspective of operating mechanism,first of all,there is excessive disclosure of standard essential patents.Secondly,the standard essential patents patentee may implement a variety of practices such as license refusal,patent hijacking,license fee superposition and discriminatory license to the licensee,while the standard implementer may reverse hijack the patentee by taking advantage of the disclosure obligation and FRAND principle of the standard essential patents patentee.The main source of disputes between the two parties is the determination of license fee.Currently,incremental value method,patent pool comparison method,hypothetical negotiation method,top-down method and comparable license agreement method are relatively accepted.Finally,when the standard essential patents patentee and the standard essential patents implementer cannot solve the contradiction through friendly negotiation,they can only rely on judicial channels,usually involving competition law,patent law,anti-monopoly law,contract law,civil procedure law,etc.From the point of view of the function and influence of standard essential patents,it is both beneficial and harmful to enterprises and the whole industry.On the one hand,standard essential patents can improve the enterprise’s operating income,enhance the enterprise’s market competitiveness,and enhance the level of industry innovation.On the other hand,standard essential patents may also increase the transaction cost of the standard implementer,reducethe profit margin,and may form the industry monopoly,which may have a negative impact on the fair competition in the industry or in the market.In the future research,we suggest that the generation process of standard essential patents can be further analyzed from the perspectives of different levels of the system,non-intensive industry of standard essential patents and international comparison,and the formation mechanism of standard essential patents and the functions among various subjects should also be the future research direction.Finally,the existing research lacks the perspective of interdisciplinary crossing and integration,and the research on the standard essential patents is mainly focused on the field of law,while the research from the perspective of economics,management and information science is less.In the future,targeted research should be conducted from the perspective of interdisciplinary crossing,so as to better understand and make use of the standard essential patents.