The Principle Of Patent License

After the standardization of patented technology patent holder's market position has greatly enhanced.The difference of the nature and the purpose of technical standards and patent rights have brought a series of complex legal problems.The patentee of essential patent in technical standards licensing and the balance of the interests between patentee and the user of technical standards have caused fierce controversies.After a long time,fair,reasonable and non-discrimination principle of the licensing formed.The principle has been widely accepted in practice and generally recognized in theory.The meaning of fair,reasonable and non-discrimination is extremely vague,and there is no uniform understanding of its meaning. Whether the specific licensing is in line with the fair,reasonable and non-discriminatory principle cannot be judged.Means that,although it is generally recognized,but it did not work actually.But there is no other principle that can replace it and be generally recognized. Therefore,the feasible way is to study the principles,give it the detailed content,make it operational,so it can guide the practice of patent licensing of technical standards,to promote theoretical studies.In view of this,this article would like to analyze the mechanism of fair,reasonable and non-discrimination,survey SSOs' patent policy,put forward a sound legal basis and security measures,give fair,reasonable and non-discrimination some maneuverable meanings in line with justice and balancing of interests,form a complete system theory of fair,reasonable and non-discriminatory licensing,point out the deficiencies and the direction of SSOs' patent policy,build a tight legal basis for fair,reasonable and non-discriminatory licensing and legal system.This paper gives the final system,through literature research,empirical research,case studies,qualitative analysis,quantitative analysis,based on the logical reasoning,empirical data.The full text is divided into four main sections.The first chapter,Introduction,explains basic theory that the fair,reasonable and non-discriminatory license theories rely on,laid the logical starting point of full text.Patent licensing is the key to achieve the purposes of patent law.Patent law,contract law and antitrust law are all close to patent licensing.Although the technical standards are combined with patent,but their nature and purpose are not the same. Only fair,reasonable and non-discrimination principle that harmonize the relationship between them and the core concept is the balance of interests.Chapter?analyzes the meaning of fair,reasonable and non-discriminatory licensing. First of all,fair,reasonable and non-discrimination principle requires the patent licensed must be the "essential patent claims" of the technical standards.Secondly,the patentee of the technical standards essential patent cannot refuse to grant the license.Third,fair and reasonable licensing terms are the core of content of fair,reasonable and non-discriminatory licensing."Fair and reasonable" lies in the fair distribution of benefits.The focus of the balance of interests between the parties is that the payment of license fees is fair and reasonable.The following principles should be adhered to when determining the fee.The amount of license fee should be according to the profits of implementing the patent,as well as in the proportion of price-related;Patentee should only obtain from its patent right and do nothing with technical standards;The amount of license fee should be according to the effective number of related patents;The amount of license fee should be effectively related to the legal status of patents;The maximum rate of patent fee should be limited.The equitable distribution of Patent licensing fees between patentees is an important component of "fair and reasonable" principle.All patentees are equal,and free consultations can result to the fair and reasonable outcome.In licensing,patentees are often imposed on a variety of restrictions. Some of these restrictions are reasonable,and some may not be reasonable,while others are completely unreasonable.Fourth,for the fair competition the in downstream product market, it is essential that the licensee of all are treated non-discriminatorily.Namely,the licensees with same conditions should be treated equal.Chapter?is empirical research about fair,reasonable and non-discriminatory license. This article chooses 29 important SSOs in the ICT impact and their policy is "fair,reasonable and non-discriminatory"(or "reasonable,non-discriminatory"),to study their "fair,reasonable, non-discrimination "policy.Also the article studies ETSI,IEEE,VITA,AVS Working Group specially.Although these SSOs recognize fair,reasonable and non-discriminatory principle, but almost no SSO give it clear meaning,and no SSO is willing to intervene in specific license matters.But there are also individual SSOs' patent policies are relative radical helpful for fair,reasonable and non-discriminatory principle.In the fourth chapter,the article established a legal protection system for fair,reasonable and non-discriminatory principle.In use of the theory of implied license,patent abuse, injunctive relief of Patent Law,enforcement obligations of the parties,obvious unfairness, change of situation,most favorable provision of contract law,abuse of market dominance theory of anti-monopoly law and so on,the article demonstrates how to safeguard a fair, reasonable,non-discriminatory principle realization,and explain the use of "reasonable principle of" to Analyze the action of SSO to participate in the development of patent licensing terms before the disclosure.Finally,the article combing the main arguments of the full text.