Calculation Of Standard Essential Patent Frand Royalty

This paper aims to combine the intellectual property theory of proportionality principle with the practical problem of the calculation of the standard essential patent FRAND license fee,and tries to use this principle to provide a theoretical support for FRAND license fee calculation,and contributes to optimization of the influencing factors and calculation methods of the license fee calculation for judicial practice,the ultimate goal is to realize the theoretical support and practical operation guidance for the accurate FRAND license fee calculation based on the theory of proportional principle,including suggestions on the influencing factors of calculations,calculation methods,problems in present judicial decisions,and the construction of future legal regulations.The purpose of this paper is to solve the lack of theoretical guidance and the resulting series of problems in FRAND license fee calculation in traditional research.In the traditional research area,it often concentrates on the interpretation of fair,reasonable and non-discriminatory meaning of FRAND,trying to extract the theoretical criteria for calculating FRAND licensing fee from its meaning.However,combining with the essential characteristics of the fuzziness of FRAND,it is hard for the court to guarantee fair and accurate discretion results without unified standard and theory base.Considering about the wide application scope of standard essential patents,the correct calculation of licensing fees is significant.This paper hopes that the theory of proportionality will be helpful to the existing calculation methods,influencing factors and the subsequent legal system construction when it fills the gap of FRAND licensing fee calculation theory.The conclusion of this paper is that the calculation of FRAND license fee should be guided by the principle of proportional principle.Under the perspective of proportional principle theory,The calculation of the FRAND license fee should be calculated from the top-down method.At the same time,the consideration and analysis of the influencing factors in the calculation of the license fee should be separated from the single enumeration of the lack of logic influencing factors,and the existing influencing factors should be taken from the inherent value of patents and patents.The positive angle of market economy value and the negative angle of preventing patent hijacking and patent superposition are more effective in reclassifying existing influencing factors.Finally,the principle of proportionality should be introduced at the legislative level,and the calculation of standard essential patents should be refined,taking into account the role of industry experts and the disclosure of standard essential patent comparable license agreements.