Counteracting SEP Abuse: In Search of a WTO-Consistent Approach

摘要

This article assesses risks of WTO inconsistencies of 'stringent' and 'relaxed' competition regimes that counteract standard essential patent (SEP) abuse with the provisions of the WTO TRIPS and TBT Agreements and provides recommendations on how such risks should be mitigated. First, China has pioneered introducing quite 'stringent' lex specialis to counteract SEP abuse. Such shifting of the balance between patent holder's rights and obligations may breach TRIPS Article 28 not justified under TRIPS Articles 30, 31 or 40.2. Second, the EU and US are examples of a more 'relaxed' competition regime that employs general provisions of competition law elaborated in a body of case-law to counteract SEP abuse. It is assessed whether SEP abuse that deters technological innovation or negatively impacts cross-border trade may contravene TRIPS Articles 7, 8.2 and 40.3. Another red zone for WTO compliance emerges when SEPs are part of an international standard within the meaning of TBT Annex 1.2 and SEP abuse creates unnecessary obstacles to international trade in violation of TBT Article 4.1. This article advocates for balancing of SEP holder's rights and obligations in a WTO-consistent manner.