Application Of FRAND Principle In Antitrust Regulation Of Standard Essential Patent

Our antitrust law enforcement and judicial practice of standard essential patent(SEP)still only involves circumstances under fair,reasonable and non-discriminatory(FRAND)licensing commitments,e.g.Huawei v.IDC,Qualcomm case."Provisions on Prohibiting Practices excluding or restricting Competition by Abusing Intellectual Property" and "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Infringement on Patent Disputes(?)" consider FRAND as principle of SEP licensing,without emphasizing the premise that business operators make FRAND commitments.Namely,even in the absence of FRAND commitment,a business operator with dominant market position should also follow the FRAND principle to license the patent.However,whether the FRAND principle has the binding as constitutive requirements in antitrust law,whether the violation of the FRAND principle is seen as a constitutive requirement for abuse of market dominance,and furthermore,the legal nature of the FRAND principle,are not sufficiently demonstrated.There is also a lack of specific and clear criteria for the violation of FRAND principles.These uncertainties make the FRAND principle easy to become a distorted form,affecting its effectiveness in the antitrust law.Most discussions of the FRAND principle by theorists focus on fair and reasonable licensing fees and non-discriminatory licensing conditions.The discussion on the legal nature of FRAND commitment and its application as a principle in the antitrust laws is relatively little.Applying FRAND Principle in antitrust law enforcement and judicial practice to regulate SEP license,and achieving the balance between SEP holders,standard implementers,standardization organizations and social public interests,are the core piece of antitrust regulation for SEP license.Based on case studies and comparative studies,in consideration of the judicial experiences and academic achievements at home and abroad applicable to the FRAND principle,this article conducts the theoretical construction of the application of the FRAND principle in antitrust regulation of SEP,clarifying the legal nature,applicable criteria and responsibility,together with theoretical and practical basis of the FRAND principle.This article is divided into five parts:The first part introduces the basic concepts of standards,standard essential patents and FRAND principles,and puts forward the emphasis of this paper combined with current regulations and judicial practice.The second part reviews different theories about the legal nature of the FRAND principle and puts forward the opinion of this article.By interpreting the current legal system,it is believed that FRAND as the principle of SEP license has both civil and antitrust regulatory effect.The third part systematically discusses the application of FRAND principle in antitrust regulation of SEP.Through case analysis,this article expounds the evolution of attitudes and academic debates between German and EU courts on antitrust regulation of SEP,including the basis of antitrust defense,the legal nature of the FRAND principle and whether the FRAND principle is a constitutive requirement for Article 102 of the TFEU.And China's antitrust justice and law enforcement is then compared,with suggestions for the problems.The fourth part specifies the violations of FRAND principles and its criteria,including refusal of license,unreasonable or discriminatory licensing conditions and claim about patent infringement.The fifth part concludes the full text.