Research On The Determination Of Standard Essential Patent Monopolistic High Price

Article 17 of the Anti-monopoly Law stipulates that the monopolistic high price is suspected of abusing the dominant marketing position,but the principle is too strict on its order,which there are some difficulties on its specific determination,especially to the determination of standard essential patent-or SEP-monopolistic high price.Due to the characteristics of SEP and the comprehensive influence of its environment,the determination process is more complex.Based on this,there are some problems in China's practice,such as insufficiently judging reason and basic consistency.This paper collected some domestic and foreign cases to adopt their successful experience and recognize their shortcomings,trying to summarize a feasible standard,figuring out the path for determination of SEP monopolistic high price.This article is divided into four main parts:The first part introduces the concept and particularity of SEP monopolistic high price.The widespread application of SEP has been accompanied by a growing number of cases involving the SEP monopolistic high price.However,since the reasonable value of SEP is difficult to be estimated,plus its hybrid system and its ambiguity between exclusivity and publicity,there are many difficulties under the existing legal framework.The second part introduces the handling situation of the Huawei vs.IDC case and the Qualcomm case,and summarizes some successful experience with new perspective,also pointing out that "different judgement on the same case" and insufficient demonstration,which is caused by the lack of a clear legal guideline.In light of these cases,our country needs to explore a special path suitable for determination of SEP monopolistic high price,and may even need to formulate a normative document for the guidance of determination of SEP monopolistic high price.The third part analyzes the cases of determination of SEP monopolistic high price in the US and the EU.Although the United States did not regulate the monopolistic high price,the cases in line analyzed its reasonable royalties from different perspective,which had referencing significance to our country.Although there are few successfully identified cases the EU,the mechanism set up by the both parties to encourage to consult in advance about thereasonable royalties is equally worth learning.The fourth part elaborates the path of determination of SEP monopolistic high price in our country.First of all,the SEP's dominant market position involved in the case must be verified;Secondly,in case of apparent unfairness being similar to the licensee's licenses containing expired or non-essential patents and the licensee's request for the freely reverse patent from the other licensee,the licensees' behavior can be directly identified as SEP monopolistic high price;Thirdly,if there is no obvious unfair behavior,it is necessary to firstly confirm the scope of reasonable royalty,and it should comply with the rules preventing patent holding up and avoiding royalty-stacking.On this basis,the reasonable royalty is confirmed,which is based on the intrinsic value of SEP;Finally,when the reasonable royalty of the patent in the case can not be estimated directly,it can be confirmed by selecting a comparably reasonable royalty standard.When the reasonable royalty involved the case is determined and the licensee with dominant market position claims a royalty higher than the standard,it can be deemed to SEP monopolistic high price.