Research On The Regulation Of FRAND Hold-up Of Standard Essential Patents

The fusion of patents and standards has resulted in standard-essential patents,which have a certain degree of monopoly,making the standardization organizations formulate FRAND commitment policy to strictly restrain them.However,due to the ambiguity and uncertainty of FRAND commitment and the strictly limited application of injunctive relief in practice,the standard implementer may use this policy to hijack the standard-essential patent owner in turn,thus giving rise to the phenomenon of FRAND hold-up.From the existing FRAND hold-up cases,FRAND hold-up will not only destroy the innovation mechanism and the negotiation mechanism of the standard-essential patent licensing market,but also cause a series of negative impacts such as taking up judicial resources and affecting the standardization process.This paper takes FRAND hold-up as the object of study,focusing on the landmark cases of FRAND hold-up that have occurred at home and abroad,and examines the causes,hazards and current regulation of FRAND hold-up.The first part of the paper is an overview,which introduces the problems of FRAND hold-up in China.The first part of this paper is an overview,which introduces the main differences between FRAND hold-up and Patent hold-up in terms of subject matter and harmful consequences.At the same time,it introduces the causes and harms of FRAND hold-up,which mainly lie in the uncertainty of the connotation of FRAND commitment,the attitude of ISO to stay out of it,the failure of the injunctive relief system and the inadequate information disclosure,and the harms of FRAND hold-up,which may lead to the destruction of the market innovation mechanism and the patent license negotiation mechanism,and also force the judicial judges to intervene in private negotiations and waste a lot of judicial resources.The determination of FRAND hold-up is a prerequisite for its regulation.Therefore,in the second part,on the basis of summarizing the common features of typical FRAND hold-up,we try to make a more precise determination of FRAND hold-up from four elements:subjective elements,objective behaviors and harmful consequences.The third part elaborates on the means of regulation and the practical dilemma of FRAND hold-up in China from two levels:injunctive relief and damages relief,which are limited in application and inadequate in damages relief due to the lack of clarity and unity of the existing legal framework.The fourth part is an examination of the current situation of FRAND hold-up regulation in the United States,Japan,and the European Union,focuses on judicial practice and administrative opinions to sort out where the states stand at different times.The commonality lies in the fact that all countries have experienced a shift from a strict to a more lenient position on the standard of application of injunctions,while the jurisprudence based on each country is not exactly the same,with the U.S.focusing more on the consideration of public interest,while Japan relies on the civil law"abuse of rights defense" system.In the last part,combining the reasons for China’s regulatory dilemma and the experience of overseas regulatory tools,we try to put forward proposals on FRAND hold-up from the legal regulation level and the standardization organization level respectively.At the level of standardization organizations,it is recommended to improve the mechanism of prior disclosure of patent information and establish the mechanism of relative disclosure of patent license fees.