The Research Of Calculation Methods Of Standard Essential Patent ‘Fair,Reasonable,and No Discrimination' Royalty

With the further deepening of standardization process,patent standardization has become an important topic of globalization in the present world.The patent which has been included in the technical standard is called ‘Standard Essential Patent'(SEP).The coerciveness of standard result in unequal negotiating status of patentee and licensee,the patentee may take advantage of the chance to charge exorbitant royalty.Standard setting organizations require the patentees who want to add their patents to the standard to make a commitment of ‘Fair,Reasonable,and No Discrimination'(FRAND),in order to avoid conflicts in patent licensing.However,as standard setting organizations didn't explicitly stated the meaning of ‘FRAND',the concrete content of ‘FRAND' remains ambiguous and uncertain,which makes it hard to achieve the anticipative effect.In recent years,the major cases of patent field in European and American countries are mostly related to the calculation of Standard Essential Patents' royalty.There are also more and more cases related to this kind of dispute in China.As for the amount of royalty,patentees and licensees can't reach an agreement on the value of patent in negotiation.Therefore they enter into the litigation channel,to let the judicial power to determine the license fee.This kind of cases get extensive attention worldwide because of the high amount of subject and complexed details of the cases.Moreover,it is disastrous to the party's enterprise once the loss of the lawsuit.The courts in different countries have shown different attitudes and approaches in the judgements of this kind of cases.This thesis consists of four chapters.The first and second chapters take the American case Microsoft Corp.v.MOTOROLA Inc.and the case Huawei Co.Ltd.v.IDC Corp.in China as the starting point,aiming to summarize the principles,considerations,reference index,and calculation methods of determining the FRAND royalties for SEPs in typical cases of existing judicial judgment.Based on the introductions in the first two chapters,the third chapter compares the American case and the Chinese case to see the differences about calculating methods,main idea of determining the royalties,and the condition about presenting evidence,then points out the shortcomings for Chinese courts to judge this kind of cases and the merits in the American case which we can take for reference in the future.The third chapter also analyzes the new rules of determining the SEP royalties in ‘Judicial interpretation?of Chinese Patent Law',to explore practical and specific principals and methods to solving this kind of disputes under the existing Chinese legal system.The fourth chapter makes a comprehensive analysis into the meaning of FRAND,combining the newest judgements worldwide about this kind of cases,then concludes the principles that we should adhere to when determine the ‘FRAND' royalty.In addition,this chapter analyzes the strengths and weaknesses of the considerations and calculating methods which have been used in the judgements worldwide,points out the qualifications and the problems to be noticed of these considerations and calculating methods when put into practice,aiming to provide a reference to settle the dispute about SEP ‘FRAND' royalties in the future.