| Patents play a very important role in modern economic competition,more of the competition for intellectual property.In the context of globalization,it will be inevitable to involve the standard issue during the process of the patented technology into production.Almost all of the technology products contain standardized elements play a standardized function in today's consumer market.Standard-essential Patents(SEPs)will appear during the integration between the technical standards and patent,as the name suggests,that is essential in the standard system of patented technology,which means that if the standard implementer aim to produce a standard product that can suit market well,it is necessary to use SEPs.But in general,the standard implementer is different from the owner of SEPs,and because of this,the standard implementer can only be granted authorization of the SEPs by the owners of SEPs.The birth of a standard essential patent will make the dominant market position for the patentee of SEP,and by allowing the standard implementer to pay a high license fee or to satisfy his or her apparently unreasonable conditions,which will disrupt normal market order.Technical standards have public properties,and patents are private areas,when the two cross,the patent rights can be easily expand,as a result,the stability of the interests between the patentee,the standard implementers and the public will be damaged.To solve this problem,the major international standardization organizations make such a provision in their respective intellectual property policy,that members of the organization to make FRAND(Fair,Reasonable and Non-discriminatory)commitment to require members of the organization in accordance with the “fair,Non-discriminatory” principle.The principle of FRAND is widely concerned around the world,one of the important reasons is that the interpretation and application of this principle is still in an unclear state,and there is no uniform definition of “Fair and Reasonable”understanding.This paper analyzes the basic connotation and applicable conditions in order to find the theoretical support of the principle.At the same time,because of the ambiguity of the FRAND principle itself,it is not practically operable,how to determine the SEP licensing rates under FRAND principle,how to provide injunctive relief under the SEP licensing and various cases are still full of doubt,and they have been included in the field of view of the anti-monopoly law enforcement agencies and the judiciary,The settlement of these problems is an important issue facing the various jurisdictions,of course,including China's anti-monopoly law enforcement agencies and the judiciary.The calculation of damages is more common in the patent infringement litigation,the United States had a “reasonable license fee”approach which is from the“hypothetical negotiation”,after the 2013 “Microsoft v.Motorola” case,With the improved Georgia-Pacific factor as the primary consideration,the first decision was made on the determination of the necessary patent royalties.Although the implementation of China's “anti-monopoly law” is not long,there are many cases of the necessary standard patents.In 2015,the National Development and Reform Commission imposed a fine of RMB 6,088 million on the grounds that Qualcomm has imposed an unfairly high license fee for its SEP.And “Huawei v.IDC” case could be described as a pioneer of the SEP litigation in China,the court used the FRAND principle to determine the SEP royalties.In the case of injunctive relief under the Standard-essential Patent,if the patent licensor obey FRAND terms,it will not happen that the patent licensee make the standard implementers accept unreasonable permission by seeking injunctive relief,and the licensee should abide by the FRAND Principle so that can be divided into goodwill.This paper attempts to analyze the principles of FRAND and the theoretical points and the application of the focus in order to sort out the principles in a more complete way. |
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