The Analysis On Standard Essential Patents' Disputes Under The FRAND Principle

With the development of Intellectual property,the patent merges with technology.Both theoretical and practical circles focus on the standard essential patents.The standard involves with public interests,however,the patent involves with private right.FRAND is established by organization for standardization to maintain a win-win situation.SEP holders should make commitments to comply with the FRAND rules.FRAND has promoted economic development and reduced transaction costs.It has also brought positive effects on market renewal and optimization.However,FRAND's definition is uncertain,and organization for standardization do not define it clearly.Especially,the principle of rationality,as an important tool for regulating the SEP licensing fees,is still not clearly defined.FRAND's deficiencies bring a great trouble to SEP licensing fees.Many methods of solving that problem have some limitations.The academic and theoretical circles keep pursuing ways to solve those problems.The IP lawsuits has increased in recent years.and the parties ask for compensation for infringing products and bans on it.Can injunctive be an important means of solving patent disputes?Do we need put some limitations on injunctive?Academic and theoretical circles are struggling for important methods of solving patent disputes.The first part of this Paper is about an overview of FRAND and make a brief analysis of the connotation of FRAND.The main reasons of existence of FRAND are the combination of technology and standard and the expansion of SEP's markets.Three principles5 definitions have changed as judicial practice has developed in recent years.Then the paper focus on the FRAND 's deficiencies,which mainly involves with vague definitions.And the vagueness includes connotation's uncertainty and legal nature's fuzziness.Referring to the legal nature's fuzziness,there are three main ideas:FRAND is like a contract;FRAND is just like an invitation of an offer;and FRAND is like a compulsory contracting.Then the paper analyzes the problems caused by FRAND'deficiencies,which include the patent royalty stacking and patent hijack and patent anti-hijack.The paper also provide some solutions for those problems.And the paper make a discussion about the principles,factors and specific method for SEP licensing fees overseas.Then the paper makes a discussion of injunction and make a summary about how to use injunction correctly.Based on China's current conditions,with a combination of legislation and judicial practice,the paper offers some advice concerning those problems.