The F/RAND Commitment Of The Standard Essential Patentee And Its Restriction On Patenter

With the addition of standard power,the original legal monopoly rights of patents have been further strengthened,their market capacity has been enhanced,and the balance of interests has been further tilted to the standard essential patentee.As standard-setting organizations have been aware of this dangerous situation,they have issued intellectual property policies to balance the interests between the standard essential patentee and the standard implementer,of which the F/RAND principle is an important one.According to the requirements of the F/RAND principle,before the standard-setting organization adopts the patentee's patent technology as the standard,the patentee needs to make the commitment of F/RAND licensing and to promise that he is willing to grant the patent licensing to the standard implementer according to the principles of fairness,reasonableness and non-discrimination.The legal nature of F/RAND commitment.as an important means of restricting the standard essential patentee,has not yet been clearly concluded.The identification of the legal nature of F/RAND commitment,on the one hand,is directly related to the division of rights and responsibilities of all parties in the process of implementation of standards;on the other hand,it will affect the healthy development of standards-related industries.This paper tries to analyze the rationality and insufficiency of various theories by integrating the different views of the current academic circles on this issue,and to explore the legal nature of F/RAND commitment.This paper will discuss the legal nature of F/RAND commitment in four parts,and then return to the nature of F/RAND commitment and analyze the restrictions on patentee of F/RAND commitment itself.The first part starts with the basic concepts and attributes,and briefly introduces standards,patents and standard essential patents.Based on the analysis of the public nature of standard and private attributes of the patent,the concept and attributes of the standard essential patent that combines standard and patent are further introduced.At the same time,the logic of F/RAND commitment is analyzed.Requiring the standard essential patentee to make F/RAND commitment is the consistent choice of the standard-setting organization so as to restrict the standard essential patentee.The second part critically considers several different views on the legal nature of F/RAND commitments.The first is the third-party interest contract theory,which holds that the F/RAND commitment belongs to the third-party interest contract clause,and the standard implementer can be the beneficiary of the third-party interest contract.The second is the theory of invitation for offer.According to the theory,the F/RAND commitment is an invitation from the standard essential patentee to the potential standard implementer,which only indicates that the standard essential patentee has the obligation to offer the F/RAND offer when the standard implementer applies for the patent license.The third is the compulsory contracting obligation theory,which holds that the F/RAND commitment should be understood as the compulsory contracting obligation,which means that the standard essential patentee has a non-refundable licensing obligation to potential standard implementers.The fourth is the doctrine of pre-contract obligation,which holds that the commitment of the standard essential patentee under the F/RAND principle is a kind of good faith negotiation obligation,in other words,its essence is pre-contract obligation.While introducing different theories,this paper also reflects on the problems existing in these different theories.The third part puts forward the view of F/RAND commitment from the perspective of unilateral promise.After analyzing the legal characteristics of the unilateral promise,it is proposed that the legal nature of the F/RAND promise should be recognized as the unilateral promise,which can establish a more direct legal relationship between the standard essential patentee and the implementation of the standard.On the one hand.it can limit the dominant position of the standard essential patentee in a better way;on the other hand,it can facilitate the standard implementer to better safeguard their own interests,which is more in line with the true meaning and value orientation of F/RAND commitmentThe fourth part mainly introduces the restrictions of F/RAND commitment,as a kind of unilateral promise,on the essential patentee of the standard.Starting from the legal nature of F/RAND commitment and from the perspective of the value of F/RAND commitment,this paper points out that the proper meaning of F/RAND commitment is to limit the right to refuse permission,to limit the application of injunction relief,and to grant the standard implementer an independent claim.