Study On The Determination Of Royalty In Standard Essential Patents(SEPs)

Standard Essential Patents(hereinafter referred to as SEPs)are patents that must be used by the implementer to achieve certain specific standards,and they are patents that can not be missing in all technical standards.If the use of a technical standard is to promote and has been recognized as the industry standards or national standards,so the products or services which can not meet the standards cannot achieve enters to the market,and now the implementation of specific technical standards is mandatory requirements to implementer.Because the technology standard is open to the whole society,the license and implementation related to the standard essential patents relate to the public interest of the whole society.Ithas many considerable advantages to combining technology standard with patent,for example,the combination of them is very helpful for realizing the unification of technical specification and enhancing the compatibility and versatility of all kinds of products or services in the industry.But if you want to enter an industry or market you must adopt the patent,the patentee of the patent technology will obtain the control power to relevant industry or market,the patent itself has the characteristics of monopoly will be more powerful,the patentee can easily use this patent monopoly,thereby endangering the normal order of the market operation.Therefore,under the premise of guaranteeing that the patenor can get benefits,the scope and boundary of the rights they exercise also need to be restrained,otherwise,the implementers of the patents will pay a heavy price.In a lawsuit involving the standard essential patents licensing royalty,both the lawyer's opinion and the judge's trial are indispensable to the FRAND licensing principle.This paper is divided into four parts.The first part mainly introduces the related concepts and development status of standard essential patent,including the definition of standard essential patents,the basic principle of determining standard essential patents license royalty-the definition of FRAND principle,abroad currently degree of development for the determination of royalty in standard essential patents licensing and basic case briefs and the latest policy trends,domestic currently profile of the theoretical research and practice for standard essential patents licensing royalty,domestic currently lack of judicial practice and legal basis.The second part introduces three very typical examples of how to determine the standard essential patents license royalty abroad.The three cases and methods are as follows:"The hypothetical negotiation between the two parties"is from the United States"Microsoft Corp.v.Motorola Inc ",the method of cross-linking" Top-Down "and"Comparable License Agreement "is derived from the judgment of" Unwired Planet International Ltd.V.Huawei Technologies Co.Ltd ",The version "Top-Down" comes from the judgment of "TCL Communication Technology Holdings,Ltd.v.Telefonaktiebolaget LM Ericsson" in the United States,and detailed steps decomposition and data mining analysis of these three calculation methods.In the third part,through the above calculation methods of foreign cases,we summarize the influential factors of standard essential patents in foreign and determine the five common factors.The fourth part introduces the practice and development direction of the method of determining of royalty in standard essential patents license in our country.First,it introduces the definition of the royalty in the typical cases in our country.By introducing the case to discover shortcomings,at last put forward suggestions for improvement in legislation,judicature and government respectively,so as to offer advice and suggestions for the determination of royalty in standard essential patents license in our country.