Judicial Determination Of Royalty For The Use Of Standard-essential Patents

Patent system aimed at incentiving technological innovation and dissemination by authorizing the patent holder certain monopoly.But when a patent becomes a standard essential patent(SEP),the holder occupies a dominant position in the market,and collect higher royalty to the licensee than the value of the patent itself.When the balance inclines to the patent holder,criticism of the patent system appears.Although holders of standard essential patents generally make F/RAND commitment,it is abstract.Different courts bear different attitudes in determining F/RAND royalty,though having reached a consensus in principle,the patent holder should not enjoy the benefit of the value-added part of the standard essential patent,for example.they stand in different viewpoint when determining F/RAND royalty.Some tend to be conservative,others to be radical,they pay too much attention about SEPs-holdup,while ignoring abuse of patents before they becomes SEPs.In short,there is not a widely accepted method about determining the SEP royalty yet.SEP royalty should be determined on the basis of its value,especially the technical value.Preventing of abusing of the SEP,and the purpose of patent system to promote technological innovation and diffusion should be considered fully when determining SEP royalty.This article is divided into six chapters:The first chapter is the introduction of the purpose of research and the research situation at home and abroad.The second chapter is the introduction of SEP.The third chapter introduce patent and standard,then analyzes imbalance of benefits brought about by the SEP,and the lacks of how to deal with the problem,points out the necessity of the study of patent value.The fourth chapter is based on the idea that value determines royalty.Firstly,to demonstrate that the patent system should be based on the promotion of innovation;Secondly,to examine the value of patents from the perspective of technology,legal and market;Finally,to propose that the most reasonable royalty determining system should realize the purpose of promoting technological innovation and diffusion.Both monopoly factors after the patent become SEP and before that should be considered in determining the SEP royalty.The fifth chapter firstly analyzes the meaning of the F/RAND licensing,then analyzes cases of SEP royalty in the United States,Japan and China in recent years,and found that these countries selected deferent methods in determining SEP royalty,however,the selection is inadequate.In the sixth chapter,puts forward that the value-especially the technical value,is an important factor to determine F/RAND royalty and puts forward suggestions on the improvement of the SEP royalty determining system.