The Legal Application Of FRAND Principle In China And Europe

With intensive competition in the field of telecommunication market,more and more intellectual property disputes have sprung up.Among others,Standard-essential-patents have become the new focus of intellectual property lawsuits.The Standardization improves the interoperability between products and services,reduces the production cost.Meanwhile it creates a risk,that the patent owner may demand vast sums of license fee by making use of the exclusivity of the patent right.For the purpose of avoiding this risk,the Standardization Organizations will normally ask the patent owner to make a promise:the patent owner will license the patent to the third party under the fair,reasonable and non-discriminatory condition("FRAND principle").However,due to the abstractivity and uncertainty of the FRAND principle,two main issues in the IP disputes have come up:A)Is the observation of FRAND principle equal to the waiver of injunction?B)When the SEP owner and potential licensee can not get an agreement on the content of license contract,how should the license fee be decided?Since there is no oriented regulation in this field,the judicial authorities have to solve these problems with initiativeness,no matter in China or Europe.This article comprises five parts as follows:Chapter one introduces the background of the issue,including conceptions of Standard and SEP.Chapter two analyzes the significance of the study.On one hand,the legislation on the issue,whether the exertion of patent right should regulated by the Antitrust law,is unclear;On the other hand,the internal regulation of standardization organization(ETSI as example)on the application of FRAND principle lacks of orientability.Chapter three introduces the solution to this issue in Chinese legal practice in the case"Huawei vs.IDC".In this case the court of Guangdong Province exerted the initiativeness.Nevertheless,there are many unreasonable interpretations to the application of FRAND principle.Meanwhile,the academic circle of IP law in China pays more attention to the U.S.legal practice in order to seek for judicial decision on the license fee of SEPs.Chapter four introduces the development and innovation in the application of FRAND principle in European legal practice with case "Orange-book-Standard" and "Huawei vs.ZTE".Depending on deep analysis on the decision of European court regarding new obligations of licensor and licensee,the standard of procedure justice set up by the European court has a stronger application Signification to the Chinese legal practice.In chapter five,this article puts a new opinion forward:new obligations should be burdened to the Standardization Organization in order to set FRAND principle as behavioral standard in judicial procedure.The conclusion summarizes the key viewpoints in this article.