Research On The Nature Of FRAND Commitment And The Application Of Injunctive Relief In SEP License

After the combination of the patent and the standard,it becomes the standard essential patent,then the balance of interests between the patentee and the implementer of the standard is broken,and the patentee occupies the dominant position in the licensing negotiation.In order to deal with the balance of interests in the disputes of the standard essential patent,the FRAND principle came into being.The standard setting organization requires the standard essential patentee to promise to license the patent on the principle of fairness,rationality and non-discrimination.The effective implementation of FRAND commitment has become a means of balancing interests to solve the disputes of standard essential patents.How to ensure the effective implementation of FRAND commitment is the key to solve the disputes of standard essential patents.However,through the qualitative analysis of FRAND commitment,there are still many difficulties in the implementation of FRAND commitment.On the one hand,due to the fact that the nature of FRAND commitment is not yet clear,FRAND commitment lacks specific legal guidance during its implementation;on the other hand,injunctive relief is the most typical problem when it comes to the disputes of standard essential patents.The implementation of FRAND commitment also has a certain impact on the application of injunctive relief,but there are still disputes about the conditions for the application of injunctive relief.In order to ensure the effective implementation of the FRAND commitment in China,this paper attempts to provide precise legal guidances for the implementation of FRAND commitment and improve the standard essential patent system on the basis of clarifying the nature of FRAND commitment;this paper investigates the ways to guarantee the implementation of FRAND commitment in the United States and the European Union.On the basis of clarifying the protection of injunctive relief right and the regulation of injunctive abuse,it tries to clarify the applicable conditions for the implementation of injunctive relief and solve the balance of interests of injunctive relief.This paper is divided into five parts:The first part is the basic concept of the standard and the standard essential patent.After introducing the background of FRAND commitment,this paper analyzes the specific connotation and implementation dilemma of FRAND commitment.The second part analyzes the behavior nature of FRAND commitment through the reflection of the current mainstream theories.The third part examines the way to guarantee the implementation of FRAND commitment in the United States.With the principle of rejecting injunctive relief and granting injunctive relief as an exception,the United States solves the injunction problem via the "four-factor test standard" in the patent law to ensure the effective implementation of the FRAND commitment.American courts hold that the patentee's FRAND commitment means that the patentee recognizes the adequacy of the remedy for damages,and thus restrict the issuance of injunctions more strictly.The fourth part examines the way to guarantee the implementation of FRAND commitment in the European Union,and analyzes how to determine the conditions of the application of the injunctive relief.In the case of "Huawei v.ZTE",the European court of justice clarified the procedures for patent licensing negotiations and the obligations of both parties,established the criteria for judging the abuse of the injunctive relief,and established the applicable conditions of injunctive relief.The abuse of the injunctive relief by the patentee will constitute the abuse of the dominant market position.The standard implementer may claim the anti-monopoly compulsory license defense.The European Union regulates the abuse of injunctive relief through the anti-monopoly law to guarantee the implementation of FRAND commitment.The fifth part puts forward some suggestions on improving the law to ensure the implementation of FRAND commitment.The first step is to clarify the legal guidelines to implement the FRAND commitment.Secondly,the application conditions of injunctive relief are determined by referring to the legal practice of the US and the EU.Finally,we should improve the anti-monopoly regulation on the abuse of injunctive relief.