Legal And Economic Analysis On The Calculation Of Standard Essential Patent License Fee

The calculation of standard-essential patent license fee reflects the conflict and balance between the patentee and the standard implementer as well as the private rights and the public interest.At present,the calculation of standard-essential patent license feeis based on FRAND commitments.It is fair,reasonable and non-discriminatory to judge whether the license fee is too high or too low,and the number of the reasonable license fee.But it's difficulty that how to calculate the fee,because the meaning of the FRAND commitments is not clear,the complexity of the patent itself and the variation of the market.The main content of this article is the calculation of standard-essential patent license fee,with the FRAND policies in standards organization in domestic and international,the experience in judicial and law enforcement,the calculation model of Economics,to reveal the rationality of the method in the existing law practice.At last,the suggestions for the calculation of the standard-essential patent from legislation,justice and law enforcement.The article first introduces the basic concepts of standards and patents.The commonality,repetitiveness and universal applicability of the standard determine its public property.However,as an exclusive right,patent rights are inherently private and monopolistic.The development of technology and economic society,the integration of patents and standards is unavoidable,but the emergence of standard essential patents has also brought about the monopoly of technology and the destruction of competition.The reasonable standard-essential patent fee is very important for how to balance the standard promotion and innovation protection.After exposing the necessity,the article sums up the experience of the calculation of standard-essential patent license fee,combining with legal empirical analysis of case and theoretical study of economic model.In legal empirical analysis,the article selects typical case of standard-essential patent license fee in our country and the United States.Microsoft v.Motorola case,Innovatio v.LLC and CSIRO v.Cisco all use the hypothetical negotiation method,with the modified Georgia-Pacific Factor to determine standard-essential patent license fee by comparative method or Top Down calculation method.The calculation process in the cases of Huawei and Qualcomm is relatively simple,but also including the consideration factors and method of the calculation.The theoretical study of the economic model shows the range of the reasonable license fee and the result that the whole market value as the basis of the calculation may bring royalty stacking by patent hold-up.And it's more reasonable to take the smallest unit as the basis which is more and more used in practice.Efficient component pricing rule can be effectively applied in judicial practice,it can obtain the license rate by simulating the competition between similar technologies.But the simulation requires a lot of data to reconstruct the state of competition in advance and it is very difficult.Shapley value based on the distribution of benefits in cooperative games,according to the marginal contribution to calculate the maximize utility,but it also exists "reduction" difficulties.The Lemley-Shapiro Arbitration based on a simple economic theory that allows the third party to select a more reasonable license fee from the two parties' quotes through the "bargain".The latest regulations in Anti-monopoly law and Patent law are including the FRAND commitment and not explain the meaning of FRAND commitment.Therefore,the article advises: in legislation,it is necessary to further clarify the connotation of the FRAND commitment,introduce Georgian-Pacific factors and other factors as well as improve the patentee's disclosure system to provide a reference,and introduce the Lemley-Shapiro arbitration to avoid or reduce the litigation of standard-essential patent fee.In the judicial,the burden of proof should be reasonably distributed,and the principles of case-by-case should be applied,in different case with different method.In law enforcement,Anti-monopoly law enforcement agencies should respect the free negotiation of the licensees.Forcing the patentee to change the pricing mechanism through punitive damages and prompting the rationalization of license fees.