Study On The Issues Of SEP’s Application Of FRAND Obligation

The conflicts between the publicity of standard and the privatization of patent make the FRAND licensing disputes of Standard-Essential Patent(SEP)increasingly fierce.In the face of the current situation lacking specific rules,it is necessary for us to accelerate and deepen the study of FRAND obligations and find the most appropriate way to resolve the FRAND licensing disputes,which provides theoretical references for future relevant judgement and legislation.The study on FRAND obligations is not only to solve the disputes between patentee and licensee and create level playing field and market order,but also promote the use of advanced technologies,benefiting the general public and safeguarding the public interest in the long run.Besides,it is good for encouraging Chinese enterprises to innovate and to participate in the formulation of standards,offering a reference for Chinese enterprises in international market,promoting the integration of intellectual property protection with international standards and helping China to have a bigger voice in the formulation of international intellectual property rules.One of the focuses in the application of FRAND obligations is what the meaning of FRAND obligation is,which contains the specific meaning and the legally binding force of FRAND.These are two basic issues in FRAND licensing disputes.The relevant normative documents made by organizations for standard and some countries all provide that patentee should license on fair,reasonable and non-discriminatory conditions,but there is no explanation for what is fair,reasonable and non-discriminatory.In practice,the meaning of FRAND obligations is directly reflected in the judgement of the licensing conditions,that is,how to judge the licensing conditions,especially the licensing fee,meet requirements of ’fair,reasonable and non-discriminatory’.The legal binding force of FRAND obligations is the premise of resolving the FRAND licensing disputes.By defining the legal nature of FRAND obligations,it is helpful to provide the just claim for patentee and licensee and the basis for court’s trail.Fair,reasonable and non-discriminatory are different but related.We should pay attention to the basic principles and specific requirements of FRAND obligations instead of separating completely.The ultimate purpose of defining the meaning of FRAND is to judge the license conditions,especially the license fee.Therefore,we can study the meaning of FRAND through the method of judging the license conditions in cases.The FRAND declaration made by patentees shows that they set a burden on themselves,but at this time the FRAND obligations are formalist and have no substantive binding force.After entering into the licensing negotiation,in the process of concluding a contract,patentee and licensee both have substantive FRAND obligations which include negotiating in good faith under fair,reasonable and non-discriminatory licensing conditions.If one party breaches the FRAND obligations,it shall be liable for contracting fault.The basis for FRAND obligation may be different in different circumstances.Anti-monopoly law can be used as the basis of FRAND obligation when patentee abuses the patent right to exclude and restrict competition.Civil law and contract law may be used when patentee dose not abuse his patent right but breaches FRAND obligation or standard implementer breaches FRAND obligation.