Study On The Licensing Principle In The Standard Essential Patents

The specific applications of the FRAND principles in judicial decision in the standard essential patent are important issues.Under the background of technology patentization,patent standardization and standard globalization,the specific applications of FRAND principles in judicial decisions are no longer the isolated phenomenon only in developed countries,but the common problem universally existing in many countries in the world.Huawei v.IDC in China and Ericsson v.Millet in India indicate the FRAND licensing disputes in the standard essential patents,represented by Microsoft v.Motorola in US and Huawei v ZTE in Europe,have gradually spread to China and India as representatives of Developing countries,which have aroused the strong concerns of the industry,the judiciary and academia in the world about the judicial applications of the FRAND principles in the standard essential patents.The patent has the property of private right.The original intention to establishing the patent system is to give the patentees enough incentive to create and protect their interest.It has a positive effect on promoting technological innovation and progress.The technical standard has the public attribute.The standardization of technology is beneficial to increase the production efficiency and facilitate the large-scale production.It is very important to maintain the public interest and improve the public welfare.In order to ensure the establishments,popularizations and implementations of technical standards and the protections of the patent rights in the technical standards,the technical standard organizations established the FRAND principles in their intellectual property policies.Unfortunately,the standard organizations have not specifically explained the meaning of the FRAND principles.The draft of the Fourth Amendment to the Patent Law of China and the draft Anti-Monopoly Guide on the Abuse of Intellectual Property Rights stipulated the FRAND principles,but the relevant systems were also not specific enough and lacked maneuverability.To solve the patent licensing disputes caused by the different understanding of the FRAND principles between the standard essential patent holders and the standard implementers through judicial channels,it is necessary to interpret the connotation and clarify the legal attributes of the FRAND principles and to determine the reasonable royalties based on that,and the application of the injunctive relief rule.There are the same cases in the FRAND licenses in China,represented by Huawei v.IDC.Studying the specific applications of FRAND principles in judicial discretion is especially necessary for improving the patent law of our country to adapt to the international environment and providing a unified rule of judgment for our judicial discretion.For example,it is necessary to define the applicable conditions of the injunctive relief and to calculate reasonable FRAND license fees.This dissertation makes a systematic and in-depth study on the specific application of the FRAND principles in judicial discretion both in theory and practice,attempts to construct a solution that suits our country and complies with international rules,and perfect Chinese patent-related system through the judicial discretion of such cases and guide our enterprises to participate in the global industrial competition and realizes the business interests and national interests of our country.This dissertation is divided into six chapters.In Chapter One,I summarize the FRAND Principles in Standard Essential Patents.I analyze the public properties of technical standards,the private rights properties of patents by defining the basic meaning of standards and patents.By focusing on the technology-intensive industries under the environment of technological innovation and development,this chapter analyzes the necessity of patents entering the technical standards.The connotation of the principles is ambiguous.The standard organizations established the FRAND principles in order to promote the popularization and implementation of technical standards and to prevent the standard essential patentees from refusing to grant essential patents with irreplaceable attributes.Lastly,the specific provisions of the FRAND principles in the declarations of major standards organizations and the laws of various countries are introduced.Chapter Two introduces the Historical Evolution of FRAND Principles.This chapter examines the birth and development of the FRAND Principles and is closely linked to the numerous patent relief orders issued by US courts that require patent holders to grant patent licenses to all patent enforcement applicants on the basis of reasonable non-discrimination clauses.There is a long and rich history before the FRAND commitments in Patents Licensing adopted by technical standards organizations.Over the years,the U.S.Department of Justice has been actively seeking a reasonable royalty for the licensing of patents.Through judgments and consent orders in many years,the courts have gradually clarified the standard format for the remedy of a uniform and reasonable patent royalty.Therefore,the development and change of the U.S.patent consent orders reflects to a certain extent the past and present life of the FRAND principles in the standard essential patents.The FRAND principles promised in the standard essential patents today not only inherit the unification reasonable royalties in the historical ruling of antitrust cases as the main content of the consent orders and the decrees,but also,with the standard essential patent features,have new developments and changes.Chapter III proves the Legitimacy of FRAND Principles.Any legal rules or principles that are not eliminated in the torrent of history are legitimate and the FRAND principles are no exception.This chapter focuses on monopolistic regulation,innovation incentives,and the value of the benefits balance of the FRAND principles.Although the FRAND principles first appeared in patent licensing agreements in antitrust cases,the essence was to maintain the interest balance in the field of market competition through state coercion.Specifically,the monopoly regulation is the motivation of the FRAND principles in the standard essential patent;the innovation motivation is the inherent requirement of the FRAND principles in the standard patent;the public benefit maintenance is the external goal of the FRAND principles in the standard essential patent;the interest balance is the ultimate goal of the FRAND principles in the standard essential patent.Of course,the operation of FRAND principles is always accompanied by the balance of interests.Relevant subjects should perform the task of balancing interests fairly,follow the principle of balance of interests,and adhere to the principle of balance of interests in the formulation and popularization of technical standardsChapter Four is about Judicial Discretion of FRAND Dispute Cases Overseas.In practice,disputes on the reasonable royalties of FRAND standards between essential patent holders and technical standards implementers were often instituted.This chapter reviews the typical cases in the FRAND licensing disputes that occurred in the United States,the European Union and its member countries such as Germany and Britain,Japan,India and other countries that have a significant international influence.The hot issues were given special attentions and analyzed the features of the case and the judicial decision results.I believe they are worth learning and reference that the discretions of the royalties required by the standard essential patents in the United States and the conditions for the application of the injunctive relief rules in Europe.Chapter V is about Judicial Discretion in FRAND Licensing Dispute Cases in China.Since hearing the case of Huawei v.IDC in 2013,the Chinese courts have also accepted a large number of FRAND licensing dispute cases involving standard essential patents.In this chapter,through combing the FRAND licensing disputes that occurred in China,it is considered that the courts of China mainly adopted the comparative method to determine the reasonable royalties by FRAND principles in the involved patents,and have already implemented the anti-monopoly on the standard essential patent holders who violate the FRAND principles.At the same time,I find out two issues that should be paid attention.One is that the abilities of the competition of the enterprises in China in the international markets are still relatively weak although the minority of them have made some achievements in international and domestic litigations and already have some essential patents in international standards.Another is these have appeared in China that filing in litigation by NPE which appeared from foreign countries and taking the FRAND principles as commercial tactics.Chapter Six is about how to better in the Application of FRAND Principles in Judicial Adjudication in China.The FRAND principles of the standard essential patents are universally applicable in patent licensing disputes around the world.And although there are some differences,it undoubtedly plays an important role.International trade requires that intellectual property laws break through the national geographical restrictions and establish relatively uniform rules all over the world in order to spread and exchange information.China,as a new battlefield for litigating in the FRAND licensing disputes,is necessary to take seriously and properly settlements in the FRAND disputes concerning the standard essential patents.Based on the actual situation of our country,this chapter interprets connotation of FRAND principles;analyzes the legal nature and effectiveness of FRAND principles;answers the application of injunction rules,the determination of the royalties and the problems encountered in the antitrust review in violation of the FRAND principles in China.And this chapter also purposes some suggestions to resolve the disputes in the licensing of the standard essential patents to our courts and antitrust law enforcement agencies.