b) Review on the Conditions of Use and Obligations of Disclosure
As the “reasonable and non-discrimination terms” (RAND) listed herein is the generally accepted license model all of the world, it is believed that the obligations of disclosure have been fully fulfilled and the conditions for the use of patent may not be claimed as unreasonable or inaccurate.
In summary, Article 20 of the Draft mainly focuses the “Obligations of Disclosure”, i.e., the standard user may be awarded the remedies if the obligations of disclosure is fails to be fulfilled, provided, however, no provision is made for the restriction of standard maker and remedies to the PIS owner, for example, if any patent is incorporated in the standard due to the negligence of standard maker, or without notice to PIS owner and disclosure to the public, whether the owner may refuse the use of its patent, whether such standard is effective, what liabilities shall be assumed by the standard maker or what remedies may be provided to such owner?
With the increasingly important role played by the transnational enterprise, industry alliance and other unofficial standard makers in the establishment of international, regional, national or industrial standards, if the standard maker, concurrently as the patent owner, fails to be restricted reasonably, it is possible that monopolization and abuse of IP may occur for the maximum profits of such patent owner. Therefore, perfect rules to equalize the rights and obligations of the parties to Patent Standardization shall be necessary and urgent.
■ Conclusion
The new patent law shall come into effect on October 1, 2009 without any stipulations on the Patent Standardization, provided, however, Interpretation of the Supreme People''s Court on Certain Issues Concerning the Application of Law in the Trial of Controversies over the Infringement of Patent Right (Draft), as the ancillaries and remedies to such defect, may provide the corresponding legal basis for the determination of disputes arising out of the operation of Patent Standardization.
