Judicial Application Of The Frand Principle In The Standard Essential Patent License

The competitive strategy of “technology patentization,patent standardization and standard industrialization” has enabled more and more enterprises to actively incorporate their patents into the standard.Although the Standard Setting Organization requires the patentee to make a FRAND license commitment,the high economic returns pursued by the patentee and the low-cost investment expected by the implementer still make the license dispute arising from the standard essential patent license common in courts.The ambiguity of the FRAND principle itself causes the parties to dispute the interpretation of the FRAND commitment,and further affects the application of injunction and the calculation of the license rate in judicial practice.How to solve the difficulties caused by the FRAND license judgment criteria is particularly important.The FRAND Commitment is an unilateral legal act by a standard essential patentee,creating a unilateral obligation for the bona fide licensee not to refuse the license.Under the framework of the FRAND Principles,standard implementers should also be bound by the principle,and they have been obliged to negotiate in good faith since the consultation.The difficulty of applying FRAND principle in current judicial practice lies in the ambiguity of the criteria for judging whether it conforms to FRAND permission and the simplicity of the criteria for results.From the perspective of behavioral standards,this paper examines the norms of the parties seeking injunction in the global judicial practice and the criteria for identifying the fault in the process of licensing negotiations.It holds that the attitude of the current judicial practice in the world is from extreme to compromise in the application of the norms.The actions of the parties involved in the standard essential patent licensing affect the determination of their fault in the whole consultation process.From the perspective of the result standards,this paper examines the determination of patent strength of the parties involved in licensing disputes,the selection criteria of comparable licensing transactions and the calculation method of FRAND licensing fees in the absence of comparable licensing transactions.It is considered that FRANDlicensing fee rate should be equivalent to the patent strength of the parties,and different dimensions should be taken into account in the selection of comparable licensing transactions.From the perspective of negotiation process and rate determination corresponding to the standard of conduct and result,this paper puts forward some suggestions for improvement.It holds that in the case of limited restrictions on the application of injunction relief,the fault identification of the parties should be clarified,the fault forms of the parties should be clearly listed in the norms,the negotiation behavior of the parties should be examined in the process,and the obligee should be carefully identified in the results.The injunction request is based on the principle of not issuing injunction,with the exception of issuing injunction.In terms of licensing fee rate,it puts forward clear criteria for judging patent strength and selecting comparable transactions,and considers that comparable transactions should be preferred when comparable transactions can be obtained.In the absence of comparable transactions,appropriate methods should be selected for specific calculation according to individual cases.