Research On The Judicial Determination Of The Standard Essential Patent Licensing Royalty

The inconsistent negotiation of Standard-Essential Patents licensing royalty is one of the major causes of disputes between patent owners and standard implementers.At the same time,the amount of the royalty is also the main reference factor for whether the licensees achieve the balance of interests.When the “private” of patents overlaps with the “publicity” of technical standards,it is easy for patent holders to use the “necessity” of technical standards to expand their rights,creating market failures such as patent hijacking and license royalty superposition,and destroying the relative The balance of interests between the parties and the public.Therefore,corresponding regulations are needed to prevent or even avoid such imbalances.At present,Fair,Reasonable,and Non-Discriminatory----the principle of FRAND is a basic principle that right holders should follow when they carry out the licensing of standard essential patents.the license royalty is judged from the three dimensions of fairness,reasonableness,and non-discrimination to be appropriate.With the occurrence of standard-neutral patent disputes in recent years,the court has also become a major body determining the standard patent licensing royalty.At present,the lawsuits involved in the calculation of the license royalty for the standard necessary patents can be roughly divided into three categories: the infringement litigation,the litigation fee litigation judgment,and the antitrust litigation.Among them,the reference factors related to royalty and their calculation methods,patent hijacking,the superposition of royalty,the nature and validity of FRAND commitments,have become difficulties in the trial process.In order to solve such problems,the extraterritorial theory and practice community have summed up the multiple “Georgia-Pacific factors” and various validity calculation methods such as imaginary negotiation method,comparative agreement method,patent value evaluation method,and maximum peak method.At present,there are mainly problems such as weak theory,ambiguous factors,and single method in the judicial determination of the royalty for standard essential patents.Therefore,it is necessary to refer to relevant judicial experience from overseas to perfect it.