On The License Fee Calculation Method Of The Standard Essential Patents

As more and more patents are incorporated into the standards,the status of patentees in the market is becoming increasingly important.However,the phenomenon of patent abuse also appears which has a certain impact on the implementation of standard patents.In this context,the study of the implementation for standard essential patents(SEPs)is of great value.The FRAND principle,which is formed in the SEPs licensing process,shows its ambiguity in the application process.For example,because of the understanding of the FRAND principle,The litigation of SEPs are more and more frequent in European and American judicial practices.This situation is also reflected in our country,in 2013,the case of Huawei and US digital interactive company is the first case of FRAND principle that used in the litigation of SEPs in our country.Since then,the application of the principle in the practice of patent disputes gradually increased.It is noteworthy that most of our enterprises in the technical standards did not dominate,coupled with the lack of understanding of the meaning of the FRAND principle,often lead to unreasonable licensing fees authorized conditions,they were charged high license fees.Therefore,it is very important to study the calculation method and influencing factors of SEPs license fee based on the accurate understanding and use of the FRAND principle.This paper intends to analyze the typical cases of SEPs license fees in China,Japan and the United States courts,and discuss them through four parts:The first part discusses the SEPs and FRAND principle,and focuses on the legal attributes of the FRAND principle.The second part introduces the typical cases of patent licensing fees in the United States,Japan and China,and summarizes the calculation methods of the reasonable license fees of the above three courts and reviews the cases.The third part analyzes some elements which influence the license fee from the aspects of technical factors and economic factors.The fourth part puts forward the fair,reasonable and non-discriminatory licensing fees solution according to the non-scientific and related loopholes of SEPs licensing fees in the computing system.This paper hopes to enhance the understanding of the connotation of FRAND principle in our country by the above four parts,and provide reference for our judicial practice and enterprise patent license negotiation.