The Determination Of Standard Essential Patent Licensing Rates Under The FRAND Principle

Starting from the patent litigation between the Huawei and the IDC in2012 and the NDRC imposing a sky-high fine of 6 billion on Qualcomm in 2015,to <anti-monopoly guideline about the abuse of intellectual property> seeking public opinion today,the standard-essential patent is coming into our sight gradually.The standard-essential patent(SEP)is the product of development of science and technology,and the combination of patent and technical standard.TheSEP increases the efficiency of the arrangement of the resource but brings a number of problems as well,especially the question of how to determine the royalty rate ofSEP.Even today,the academics and practical experts cannot reach a consensual agreement yet.This thesis starts with the problems brought by the SEP,and combines with the principle of FRAND,providing some clues and thoughts in the respect of the determination of the royalty rates.This thesisis mainly made up of three parts:The first part primarily introduces some fundamental concepts of the principle of FRAND and then the problems brought by the SEP,including “patent holdup”,“patent stacking” and “discriminatory permission”.This part introduces the types and causes of these three problems,and the significant negative impact on the determination of the royalty rates.Meanwhile,this part analyzesthe reason why the principle of FRANDcould resolve these three problems to the maximum extent.Finally,this part introduces the nature of the principle of FRAND and analyzes the implication of “fair,reasonable and non-discriminatory principle” from the perspective of jurisprudence and economics.In the second part,this thesis refers to certain classic precedents and elaborates the way America,Europe and Japan adopted to determine the royalty rates under the principle of FRAND in the cases of the SEP.These approaches can be studied for reference in Chinese cases.In the third part,this thesis summarizes the related precedents and legislation abovementioned,and then provides some recommendations to the procedure and raises two approaches to determine the royalty rates when courts cope with the cases in relation to the SEP.