Theory In The Abuse Of Standard Essential Patents By FRAND Principle

The combination of standards and patents has become a new trend, the standard-essential patent bring huge profits to the patentee. However, the standard-essential patent is different from the mandatory nature of other patents, making its patentee abuse rights in order to obtain high returns. Such as merger permits, denial of license, misuse of injunctions, unreasonable fees, forced cross-licensing, additional unreasonable terms of trade are common means of abuse. At present general regulation methods mainly include the compulsory license, the principle of legal provisions, restrict the injunction as well as FRAND principles.Based on this, this paper analyzes the concept and performance of the standard-essential patent abuse and the relevant regulatory measures, especially the basis and the application of the FRAND principle and the standard of patent infringement,hoping to bring about the necessary contains standard-essential patent abuse of China to bring inspiration. This research content is divided into the following four parts:The first part: the analysis of the standard-essential patent abuse. It mainly introduces the concept and manifestation of the standard-essential patent abuse, and the means of regulation of its abuse. The current general regulation methods mainly include the principle of legal provisions, restrictions on injunction and FRAND principles.The second part is the analysis of the FRAND principle,the first is the connotation of the FRAND principle, followed by the legal effect and the legal nature of the FRAND principle, and finally the basis of the use of the FRAND principle.The third part: the use of the FRAND principle in regulating the abuse of standard-essential patent, mainly the identification of the standard-essential patent rights abuse, to provide guidance for the exercise of the standard-essential patent, to help determine the reasonable patent license rates and conditions, and conditional limit to injunction.The fourth part: the use of FRAND principles to regulate the standard-essential patent rights abuse . For China, the introduction of the FRAND principle has become an inevitable trend, which requires that the first to improve the FRAND principle, and secondly, use of the FRAND principle to guide the calculation of patent licensing rates,and finally clear the necessary restrictions on the position.