The Research On The Exercise Rights Of Standard Essential Patents

Before I came to China to study,I worked for the Samsung Electronics Patent Department in Korea.In the case of the injunction claim and damages claim,the thesis can be written with each,but in the case of standard essential patents(SEPs),as there is a tendency to limit the use of the injunction claim,so damages claim has become relatively important.Therefore,from the standpoint of the company,I would like to discuss the recent precedents and future directions of the the injunction and damages claim of standard essential patents.In chapter 1,I would like to examine the meaning of the standard essential patents,standard setting organization(SSO),and FRAND(Fair,Reasonable,and Non-Discriminatory)terms.If the standard essential patent holders do not follow the standard setting organization’s intellectual property policy and FRAND terms,courts in each country have recently restricted the injuction claim.In chapter 2,I would like to examine the pros and cons of the restriction on the injuction claim of standard essential patents and the major precedents of each country to restrict the right of injuction claim.Standard essential patents consist of a combination of patent rights based on exclusive characteristics and technical standards based on compulsory properties.The question of whether to allow the injuction claim on patent rights corresponding to property rights is still controversial.In recent years,licensees who are using unauthorized standard patents are being asked to resolve them through negotiation rather than exercising their right of injuction claim.So,the right of damages claim is becoming increasingly important as a remedy for standard essential patent holders.In Chapter 3,I would like to examine the principle of compensation for standard essential patents in each country and how to calculate the amount of damages claim,and I would like to propose a method for calculating a reasonable damages claim based on my experience working in a member company of a standard setting organization.When comparing countries around the world,China provides four methods of ’real loss’,’illegal profit’,’royalties’ and ’legal compensation’,similar to Japanese regulations.The German written law provides a method for calculating ’loss of profit’,and the case law established two methods of calculating ’royalties’ and ’illegal profit’.The UK stipulation law stipulates two methods of calculating ’lost profit’ and ’illegal profit’,and the case law established a method of calculating ’royalties’.In the United States,there have been many lawsuits related to damages claim for standard essential patents for a long time,and in order to calculate a reasonable amount of damages,the US courts have used 15 Georgia-Pacific elements before,but have recently continued to work to determine reasonable damages,including the use of Microsoft elements.It is necessary to establish a rational and clear method of calculating damages claim because the current method differs among courts in each country and there is no uniform standard.The members of the standard setting organization are also companies developing standard technologies,so they can see how much research and development costs are required to develop standard technologies.In the selection stage of the standard technologies,if the member companies of the standard setting organization discuss the license fee,it is possible to objectively verify and calculate a more reasonable and accurate license fee.And later it can be used as a reasonable and objective data to calculate the amount of damages claim in a lawsuit.Also,if the standard setting organization defines the details of the FRAND terms more concretely and clearly,it will reduce the lawsuits related to standard essential patents.