Research On The Licensing Fees Of Standard Essential Patents Under The FRAND Principle

The combination of standards and patents forms a standard essential patent,which also brings about a strong conflict of interest while promoting industrial development.In practice,standard essential patent holders often use the control of patents to hijack the standard,and obtain high license fees or other unreasonable benefits from standard implementers.Standard implementers tend not to pay or pay less license fees in pursuit of profits.In order to alleviate the conflict of interest between standard essential patent holders and standard implementers,most standardization organizations require standard essential patentees to make FRAND commitments in their intellectual property policies.However,due to the ambiguity of the meaning of the FRAND principle,the process of applying the FRAND principle in the judicial practice to resolve the standard necessary patent license fee dispute is difficult."Huawei v.IDC case" is the first time in China's judicial practice to introduce the FRAND principle to resolve the standard necessary patent license fee dispute,which has aroused widespread concern in the academic and practical circles.In the case,the Shenzhen Intermediate People's Court analyzed the meaning of the FRAND principle,proposed the consideration factors for the determination of the license fee,and determined the standard necessary license rate.However,there are some controversies in the judgment of the case,mainly focusing on the following three points:the definition of the meaning of the FRAND principle,the selection of the consideration factors for the licensing fee,and the calculation logic of the FRAND license fee.Through the case search outside the domain,it is found that the three problems in the above-mentioned "Huawei case" also exist in the judicial practice of other countries.For example,in the judicial practice in the United States,there is no clear and unified understanding of the meaning of FRAND.The consideration of licensing fees is mainly due to the“Georgia?Pacific" factor,but these considerations are not completely in line with the requirements of the FRAND principle.However,in the calculation method of license fees,there are many calculation methods in the judicial practice in the United States.The experience of the EU and Japan in dealing with cases involving standard-essential patent disputes is also worthy of reference.For example,in the "Samsung v.Apple case" of the European Union,the European Commission proposed the "numerical proportional method" for the calculation of license fees,and the "Samsung v.Apple" of Japan.In the case,the i4peak setting method" and“terminal product charging method,for the calculation of the license fee proposed by the Japanese Intellectual Property High Court.The author believes that the calculation of the FRAND standard necessary patent license fee is a very logical application problem.First of all,it is necessary to clarify the relationship between the FRAND principle and the standard essential patent license fee.The value basis of the FRAND standard essential patent license fee is the value of the patent included in the standard.The role of the FRAND principle is to measure the validity of the license fee.Participate in the calculation of the license fee.Secondly,the meaning of the FRAND principle is the basis for determining the license fee considerations.The consideration of the FRAND principle is the specific criterion for applying the FRAND principle to measure the legitimacy of license fees.On the basis of clarifying the above logical relationship,the author takes the basis of the FRAND principle,the standard essential patent licensing market as the starting point,and clarifies the meaning of the FRAND principle.Based on this,the factors of the FRAND principle are determined.According to the above logical sequence,the FRAND standard necessary patent license fee calculation method of "Basic+Adjustment" is proposed,and the calculation method and adjustment method of"Basic License Fee"are explained.