"FRAND Hold-up" Of Standard Essential Patent Licensing And Solutions To It In The International Telecommunication Field

Technological standards are widely used in telecommunication industry due to the fact that the international telecommunication field are in great need of the interoperability and compatibility of products.These standards not only bring convenience to the distribution and application of technology but also set referential criterion for related products under market competition.In the international telecommunication field,technology has already become the most important competitive factor that telecommunication enterprises heavily relied on to survive and pursue further development.Patents intensively reveal the technological achievement of an enterprise,and with the development of international telecommunication,the combination of standards and patents will definitely play a more important role in competition.With an increasing number of patents adopted by the standards,the owner of the standard essential patent possess more power of controlling markets than people who does not to some extent because of the coerciveness of standards.At the stage of negotiating about the license fee of the standard essential patent,the owner occupies a more advantaged status comparing with whose do not have any standard essential patents,which will be likely to drive the owner refuse to make a deal or seize the chance to blackmail an unrealistic high price.In order to diminish the negative effect the above mentioned situation bring and promote a healthy and sustained development of license market,governments all over the world and international relative industrial organization endeavor to regulate the market environment of patent licensing which directs parties to reach at a uniformed rate.FRAND principle is the reflection of such an exploration.However,FRAND principle itself is not perfect.It can be an excuse of standard essential patents implementor practically or potentially to blame the owner of standards essential patents that their licensing conditions do not conform to FRAND principle,though FRAND principle set rules for all parties in licensing process,which lowers the possibility of the owner of standards essential patents seeking for illegal interests by abusing their market power.Otherwise,the abuse of litigation resources in practice reflects FRAND hold-up phenomenon,which is misused by the implementor to acquire lower price or use the standards essential patents freely.“FRAND hold-up” derives from the contradiction between basic interests in the license of standards essential patents,especially in international telecommunication field where information is distributed extremely unfairly.It not only wipe out the passion of the owner of standards essential patents to devote themselves to technological innovation,but also impede the healthy and sustainable development of licensing market of the standards essential patents.Resolving FRAND hold-up problem has become increasingly important due to the leading status of standards essential patents in international telecommunication field.Under current practice nationally and internationally,it is hard to allege that mature system in licensing of standards essential patents has been set up.There is a lack of enough attention paid to FRAND hold-up not only in WTO agreements but also in some relevant standards of international organization,let alone setting up effective regulations.From a wide view of judicial practice domestically,there is also a lack of enough attention and regulation towards the FRAND hold-up.Facing with an increasing trend of disputes pertinent to standards essential patents,to improve the system of international telecommunication field,to resolve the dilemma in judicial practice and to explore ways to regulate FRAND hold-up have become an urgent need,in order to ensure a healthy and sustainable development of licensing market environment of international telecommunication field.