Research On Anti - Monopoly Regulation Of Necessary Patent License Fees

Recent years, law cases involved with standard essential patents occurred frequently, which is a hot issue not only in the field of patent law but also in the field of antitrust law. Especially, whether the royalty of standard essential patents can be regulated by antitrust law becomes the key point and difficulty of current legal circle. As a result, this article tends to demonstrate if antitrust law should or has the ability to intervene the royalty for a standard essential patent, and how it regulates, so as to obtain a theoretical breakthrough and solve the existing legal enforcement problem in practice.The first chapter of this article introduces the basic concept of standard essential patent and analyzes the particularity of it compared with general patents. The second chapter answers if antitrust law should or has the ability to regulate the royalty for a standard essential patent. The viewpoint of this article is that on account of the difficulty of market rectifying the patent hold-up, the faultiness of the FRAND terms, and abuse of injunctive relief, antitrust law has a unique advantage in multiple legal approaches. Certainly, not all the cases involved with standard essential patents must be applied to antitrust law. For example, the holder of patent may resort to patent law under the circumstance of patent hold-out. The third chapter demonstrates the identification of relevant market as well as holding the dominant market, and analyzes three types of acts of abuse including unfairly high price, price discrimination and unreasonable tied-in sale.This article emphasizes that business operators holding intellectual property cannot be directly assumed to be have a dominant position in the relevant market. We should take various factors like business substitutability and dynamic development of technology into consideration. As for acts of abuse, this article lays stress on the unfairly high price, proposing a method of binding qualitative analysis with quantitative analysis and summarizing a calculate means of “basic royalty + adjustment”. Qualitative analysis focuses on the acts of abuse, while quantitative analysis pays more attention to the numbers and rates around the royalty for the standard essential patent.