The Analysis Of Legal Relationship Between The Patentee Of Standard Essential Patent And The Implementers Of Standards Under The FRANF Principle

The combination of patent and standard is the product of social development, the combination of patent and standard can make the technology in the shortest possible time, with the fastest speed and the least cost to get promotion. But at the same time, the public welfare, mandatory of standard and the privacy and exclusivity of the patent has irreconcilable contradictions, will produce a series of problems, cause the status inequality between the patentee of the standard essential patent and the implementers. In order to balance the interest of the patentee and the implementers as well as the public, FRAND principle(fair, reasonable and non-discriminatory) arises at the historic moment. If the patentee want to make their own patent included in the scope of technical standard, they must make the FRAND licensing commitment to limit their own patent. But, due to the provision of the FRAND principle is not clear, its role has not been fully play, in order to make FRAND principle get full play, we must make clear the nature of FRAND licensing commitment. This article obtains from the Huawei v IDC case to further analyze the legal relationship between the patentee and the implementers, maintain the nature of the FRAND licensing commitment.The first part mainly introduce the "Huawei v IDC" case. In that case, the court ultimately finds IDC abuse the dominant market position, constitute the monopoly infringement, violate the FRAND principle. One of the focus of controversy is the legal relationship between the patentee and the implementers, which is the most basic legal issue. This paper will focuses on the legal relationship between the patentee and the implementers to analyze.The second part analyzes the standard essential patent and FRAND principle. The combination of technical standard and patent will result in patent hijacking, patent licensing fee accumulation and strengthen the industry barriers, causing the inequality of bargaining position between the patentee and the implementers. The core of FRAND principle is to balance the interest of both sides, maintain the order of market competition, so, most of the standard organizations use FRAND principle to limit patentee's right.The third part mainly elaborated the nature of the FRAND licensing commitment in different opinions. Part of scholars believe that the patentee FRAND licensing commitment is an offer, as long as the implementers use the patent, the two sides will set up a patent licensing contract; Some scholars think FRAND licensing commitment can only be regarded as an invitation of an offer, not an offer; Part of scholars think FRAND licensing commitment is equivalent to pre-contract obligation in the contract law; In the judicial practice the United States tend to attribute the FRAND licensing commitment to altruistic contract. The author thinks that determining the patent licensing fee(rates) is a necessary condition of the contract, the FRNAD licensing commitment that the patentee made does not show that the patent licensing contract was establishedThe fourth part mainly find the nature of FRNAD licensing commitment. This paper argues that FRAND licensing commitment belongs to the forced contracting obligation in the contract law, there is big difference between the compulsory contracting and compulsory licensing in basis, value orientation, result and procedures, The patentee should undertake the obligation of actual performance and compensation for the economic losses if they violated the FRAND licensing commitment. At the same time, the implementers have the obligation to carry out the negotiation and pay the licensing fee.The fifth part is return to the case, and analyzes the case simply.