A Study Of FRAND Judicial Confirmation To Standard Essential Patent License Fee

The FRAND principle was developed by the standardization organization ETSI to regulate the standard essential patent licensing practices.Due to the“inaction” of the standardization organization ETSI in the interpretation and judgment of the FRAND principle,the court had to be the main platform for the interpretation and use of the FRAND principle.Standard essential patents are based on the integration of standards and patents,with private and social attributes.This dual attribute is the standard for the necessary patentee to take advantage of the transaction,to implement the patent hijacking and patent licensing fee stacking convenience;and the malicious patent implementer also uses the FRAND principle to make the standard necessary patent regulations,and implement FRAND hijacking.The standard essential patentee and the implementer have failed to negotiate the license fee and appealed to the court to seek a reasonable license fee.Our country judicatory practice decides the experience of the standard necessary patent license fee to also be accumulating gradually.Looking at the existing cases,it can be seen that there are still some deficiencies in the judicial determination of FRAND license fee: One is the performance of the license fee benchmark on the choice.The most suitable benchmark is the competition between the principle of minimum salable unit and the principle of overall market value.For one thing,there is a single method to determine FRAND license fee,and "comparable license method" is often adopted.In terms of the selection of factors,it is limited to the comparable license agreement,the market value of the necessary patents involved,and the license information in the comparable patent pool.When using the judicial model to explore what is a reasonable license fee for a standard essential patent,it is necessary to construct relevant theoretical support.First,the FRAND principle is regarded as a foreign import product.As a reference principle for trying cases,it is necessary to find a legal rule that fits.Second,it is necessary to clarify the connotation of FRAND and to locate the legal effects of the FRAND principle.Therefore,the judicial determination experience of FRAND license fee in foreign countries is used for reference to further improve the relevant judicialpractice theory and experience in China.Personally recommend the use of the minimum saleable unit and the overall market value principle when selecting the FRAND license fee basis;use the "comparable patent license law" and the "top-down analysis method" in the FRAND license fee determination method;Supplementary reference to the consideration of multiple factors.