European Standards in Chinese Courts – A Case of Sep and Frand Disputes in China
N Lee, N Bruun & M Li (eds), Governance of Intellectual Property Rights in China and Europe. Edward Elgar Publishing. 2016, Forthcoming
18 Pages Posted: 24 Nov 2015
Date Written: November 18, 2015
After the initial grants of patents, contracts, industry customs and standards are adopted voluntarily by the market participants and they function as self-regulating or governing instruments to coordinate fragmentations caused by territorial rights. The activities of the standard-setting organizations (SSOs) that set standards for the use of the standard essential patents (SEPs) are one such example of self-regulation. Often, while the patent rights are local, SSOs are organizations often with multiple and heterogeneous participants. The guidelines and other soft law policies that SSOs voluntarily adopt are often likely to reflect such multi-territorial nature of SSOs’ participants. When a dispute arises on the conditions that are set by SSOs over the assertion of SEPs, the problem would be likely to include factual considerations that arise across territories. As such, disputes surrounding SEPs force local courts to consider not only local judicial standards and doctrines, but also those used elsewhere that may be relevant to understanding complex facts of disputes. This chapter discusses such tendency of the courts in the interpretation of a particular licensing principle of ‘fair, reasonable and non-discriminatory’ (FRAND) adopted by an European SSO, the European Telecommunications Standards Institute (ETSI), in Chinese courts. The chapter explores in detail the dispute surrounding SEPs between Huawei and InterDigital in China, and analyses it in the context of similar cases surrounding SEPs and FRANDs elsewhere. We argue that there seems to be a judicial globalization, where courts use of foreign-developed principles in judging local disputes with global commercial impacts, resulting from self-regulation, and that the Chinese court cases may be understood in the same vein. We conclude by arguing that this may be a next phase in the development of Chinese IP law, where the local practices of governance have to be built after the initial norms transplant.
Keywords: telecommunication standards, China, patent, legal transplant, IP law, Huawei v IDC
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