Determination Of Royalty In Standard-essential Patents Licensing

With the development of technology-proprietary and patent-standardization,the disputes of standard essential patents will be more and more frequent,and the determination of royalty will become the core issue of patent disputes.In recent years,our country is following the international mainstream policy,perfecting the relevant laws and regulations.More and more cases gradually emerged,which further attract the attention of experts in the practice and academia.In this paper,I selected four typical cases which are on behalf of the domestic judicial royalty in standard-essential patents licensing.Especially in October 2013,“Huawei v.IDC”case began to use the “FRAND” principle to make a judicial decision of patent royalty.In 2014 “Zhang Jing ting v.Heng Shui Zi Ya River” case denied the decision of “Ji Qiang Liu Hui v.Chao Yang Xing Nuo Building ”,besides this,the case further consolidated the “Huawei v.IDC” case' verdict.On March 2017,“Xi Dian v.Sony”case is a typical case that domestic enterprises sued foreign enterprises of the infringement in the ICT field.The judgments of these cases help to fill the gaps in the law and regulate the behavior of the market.But because of the limitation of our country in the judicial practice,there are a lot immature problems.Based on 12 typical cases of patent license royalty in extraterritorial,I analyzed and summarized calculation principles/methods/factors of the judicial practice,finding that the main principles are appointment principle,anti-hijacked principle,anti-stacking principle,comparison principle,standard promotion principle;Main methods are the incremental value method,top-down calculation method,comparison method,setting peak method,etc.The main factors are Georgia-Pacific 15 factors and its change,calculation basis of royalty,contributions of standard-essential patents,the qualification of the expert testimony,but the disputes has been modifying and perfecting the various factors,as for calculation basis,the relevant judgments almost supported making the minimum sales unit as the benchmark of royalty.As to consider expert testimony,we may need to consider it whether accord with Duabert rules.By integrating extraterritorial experience,we can further consummates our country legislative and judicial status.About the legislation,the first requirement is that the patentee should timely disclose information,the second requirement is clearing examination obligation of SSOs,the third requirement is to determine The consequences of the patentee and patent practitioners' violation of friendly consultation.In judicial practice,we should build a multivariate-reference principle system and calculation methods,and then we should clear the basis of royalty,at the same time,we should carefully use injunction-relief.