Study On Standard Essential Patent Problems Of Qualcomm Anti-monopoly Case

The Qualcomm anti-monopoly case has attracted wide range attention from the early stage of the investigation. On February 10 th 2015, the National Development and Reform Commission announced the administrative punishment decision on Qualcomm anti-monopoly case, found that Qualcomm abused dominating status in LTE and WCDMA, CDMA wireless communication standard essential patent licensing market and baseband chip market to charge unfairly high patent licensing fees, sell expired patents, and set free reverse license or additional unreasonable conditions and other acts, punished with a fine of 6.088 billion yuan, and ordered Qualcomm to correct abovementioned acts. This paper mainly focus on the standard essential patent problems, combined with the National Development and Reform Commission`s decision and Qualcomm's corrective plan. Through analysis on Qualcomm`s standard essential patent charging mode with FRAND principle and minimum sellable equipment principle to show that there are still some improvement we can make. Also, through the analysis come to the conclusion that the standard essential patent licensing rates should be open to the public.This paper is divided into four main parts, as follows:The first part: introduce the basic status of Qualcomm anti-monopoly case and the controversies. Firstly, introduce the investigation process and NDRC` decision of punishment together with Qualcomm`s corrective plan. Then illustrates two controversies of the case, which are that after the rectification the Qualcomm`s standard essential patent licensing fees mode is still unreasonable and need to be improved and standard essential patent licensing rates should not be treated as a trade secret.The second part: analyzing Qualcomm's standard essential patent licensing fees from two aspects which are the licensing fee rates and calculating basis. Firstly, by analysis according to the FRAND principle to show that Qualcomm`s rate of patent licensing is unreasonably high, then shares opinions on giving a reasonable rate based on the FRAND principle. Then according to the minimum sellable equipment principle and relevant cases to discuss that Qualcomm should use the price of baseband chip instead of the net selling price of the cell phone as Qualcomm` licensing fee charging basis.The third part: mainly discusses whether the rate of the standard essential patent licensing fee should be kept confidential. By analyzing from the TRIPs agreement on the nature of trade secrets and the principle of FRAND shows that the rate in the patent licensing for standard essential patent should be disclosed.The fourth part: the case`s enlightenment to China. Firstly, recommendations of regulating on the abusage of intellectual property rights in anti-monopoly guidelines by including the FRAND principle into the guidelines, setting reasonable calculating method in the standard setting process, suggesting that enterprises who own standard essential patents should comply with FRAND principle with prior disclosure scheme of patent information; then, make suggestions according to relevant terms of TRIPs on the regulation of patent abuse and anti-competitive behavior in patent licensing to perfect relevant legal system; finally, analyzing the possibilities of introducing FRAND principle into the TBT to better regulate abusage of standard essential patent under the WTO framework.