A Study On The Judicial Application Of The "Rational And Non-Discrimination" In The Standard Essential Patents License

The important strategy of the great rejuvenation of the Chinese nation is to become powerful in science and technology,but we have to realize that our country still exists many problems at present,like deficiency in technical innovation and intellectual property management is also far from perfect.Nowadays "Standardization"has always been a hot topic of the international community.In order to solve the contradiction between patent and standard,the international organization for standardization developed a series of patent policy,one of the most core is the patent licensing policy.The patent licensing policy mainly includes Reasonable and Non-Discriminatory(RAND)licensing,Royalty Free(RF)licensing,fixed price licensing,etc.Reasonable and Non-Discriminatory principle originally formulated by ISO(international organization for standardization)to limit the scope of authorization standard essential patents(SEPs)and keep the technology market fair and stability.The practice for many years,its semantic fuzziness is often criticized,but this does not affect its widely applied in many countries around the world and its important influence on the market of standardize.In our country,the RAND principle was more applied to the administrative organ antitrust investigation,such as survey of Microsoft acquring Nokia,antitrust investigations and heavy fines for Qualcomm.For reasonable and non-discriminatory principle of judicial application of Huawei v IDC is the first case,its significance is far-reaching.However,compared with foreign judicial decisions,there are some inadequate in the theoretical argument and the influencing factors of the license rate.In countries where the development of technical standards is more mature,the principle of "reasonable and non-discrimination" exists for a long time,and these countries have a wealth of experience and practice in applying the principle.This paper aims to draw lessons from these experiences and combine the actual situation of our country to study the judicial application of the principle of reasonable and non-discrimination.