On Injunctive Relief And Royalty Of Standard-Essential Patents Under The FRAND Principle

Since the beginning of the 21 st century,driven by technological revolution and economic globalization,the level of scientific and technological innovation has increasingly become one of the winning factors in the competition between countries and enterprises.With the deepening of the strategic concept of intellectual property,technology producers actively seeking patent rights into regional standards and international standards,so as to obtain huge excess profits,which is an important way for them to survive and develop in the era of knowledge economy.As the network-effect of the electronic and information industry,especially the wireless communication field,is constantly expanding,the formulation of technical standards plays a vital role in the development of the industry.As more and more patent technologies are integrated with standards and promoted accordingly,more attention has been paid by the judicial and industrial circles to the standard-essential patents system.How to solve these issues concerns the welfare of all the people who are enjoying mobile technology and the vast industry.In addition to the introduction,the thesis is divided into four parts.The first part briefly describes the background and basic case of one of the latest standard-essential patents' dispute cases in our country--Xidian jietong co.Inc.V.Sony mobile co.LTD,as well as the main points of judgment and legal issues involved in the case.The second part introduces the basic concepts of standard essential patents and FRAND principle.Firstly,there is no uniform international regulation on the concept of standard-essential patent;Secondly,as for the effectiveness of FRAND commitment made by the standard necessary patentee,the main theories at present include the theory of offer or offer invitation,the theory of unilateral legal act,the theory of implied permission and the theory of contract of third party with interests,etc.The third part analyzes and compares relevant domestic and foreign legal provisions and classic cases: Firstly,as for the application of injunctive relief,the United States does not relieve injunction in principle,and relieves injunction as exceptions.Our country relieves injunction in principle,and does not relieve injunction as exceptions.The EU decides whether to apply the injunction after considering the obligations of the patentee and the implementer.Secondly,it is the method to determine the reasonable license fee.The United States mainly adopts the "Georgian-Pacific15 factor" and the "top-down analysis method".The EU bases its calculations on the comparative licensing law;Japan uses "peak setting method";There is no clear and unified method of calculation in China's judicial practice.The fourth part puts forward some suggestions on relevant legal issues: Firstly,FRAND clause should be interpreted as the purpose of an intellectual property policy.Secondly,when applying injunctive relief,distinguish the impact of different types of standards on the public interest,and how to identify the fault of both parties;Thirdly,clarify the basic principles,calculation methods and factors that should be followed in determining the licensing rate.