Study On Criteria For Determination Of Compensation For Infringement Damage Of Standard Essential Patent

The importance of intellectual property protection is highlighted at a time when innovation is the primary driving force for development.The State attaches great importance to the construction of an innovative country.Companies and even individuals try to promote their own brands with products that bear independent intellectual property rights.At the same time,the worldwide standardization process has allowed the protection of patented technology to take a new step.The integration of standards and patented technologies is a general trend.General patents are “updated” to standard essential patents.As standard essential patents have both the public nature of standard and the private interests of patent,balance of interests between standard essential patentee and standard implementers is becoming the key to the protection of standard essential patents.In particular when the standard essential patentee suffers infringement,the infringement damage compensation,which is one of the remedies,should be made,aiming at not only disciplining standard implementers for use patents protected by patent law without authorization,but also limiting the abusing of patent rights by standard essential patentees.Thus the appropriate determination criteria of the infringement damage compensation is particular important.This thesis attempts to discuss the criteria for determination of the infringement damage compensation based on the analysis of existing issues and in combination with typical judicial cases,and give a preliminary and reasonable suggestion that would be adopted in judicial practice.This thesis is divided into three parts.The first part of this thesis outlines the definition and characteristics of standard essential patents and defines compensation for standard essential patent infringement damage,and lays the foundation for the introduction and analysis of follow-up issues.The second summarizes the predicament of determining the criteria of compensation for infringement damages of standard essential patents,and makes clear the different dilemmas that the patent's holder has an advantage in negotiation over huge amount of patent implementers,and there are many Non-Practicing Entities and stacking of standard essential patents.Then the third part analyzes the reasons for predicament of compensation for standard essential patent infringement damage,points out the special factors of standard essential patent that there are contradictions in private patent and public standards in legal attributes,patent holder's restricted exercise of rights and standard implementer's positive permission seeking and the nature of compensation for infringement damage highlights as well as balancing of interests between patent holder and implementer becomes more prominent.The forth part examines and analyzes determination criteria in typical patent protection countries-the United States and Japan,and then conducts comparison with Chinese judicial determination criteria of standard essential patent infringement damage compensation.Based on the comparison in judicial practices,the fifth proposes to limit the damage compensation to the scope of FRAND commitments,and to introduce the principle of proportionality and the contribution of standard essential patents to determine tort damage,and strive to establish balance between standard essential patentees and the standard implementers.