Study On The Interest Balancing For The Licensing Of Standard Essential Patent

Technology standardization has played a significant role in various economic areas, which greatly contributes to the development of the compatibility of products and the prosperity of technological market. Along with the increasingly developing of the intellectual property economy, patent has already been an important means for enterprises to chase for the market profit, in the meantime, the standardization organization is also in need of adopting patented technology for optimizing the technology standard set by them. The basic purpose of making technology standard is to open up the technological resources and promote the standardized technological integration, conversely, patent represents the legitimate monopoly interest for a certain period enjoyed by individuals. Therefore, both of them having the different legal functions might produce some conflicts with each other in the process of patent standardization. When involving the license of standard essential patent(SEP), the patent holders could possibly abuse their monopoly position in the technology market, which would hold up the implementation of technology standard while disrupting the competition order in the related market. Besides, in the disputes of anti-monopoly and other disputes related with license of SEP, over-emphasis on the opening and promoting of technology standard could also result in the under-protection for the legitimate interests of the patent holders.In order to balance the interests under the patent standardization, FRAND principle proposed by standardization organization becomes the commitment which the patent holder or relevant parties have to make and to comply with in the future for licensing. As to the potential patent hold-up during the licensing of SEP which might limit or eliminate the competition, the anti-monopoly laws try to limit the patent holder from abusing its right for ensuring the implementation of technology standard and the fair competition of technological market. In difference from other licensing conditions given by patent holder, how to calculate the royalties for SEP is too vague and will become an indeterminate factor for the interest balancing between licensor and licensee. Besides, the injunctive remedy practiced during the licensing of SEP could also possibly be the unfair competition means taken advantage by both parties, which will become the difficulties for the interest balancing by adjudication.Under the background of patent standardization, the balancing centering the interest relationship in the process of standard implementation and patent licensing should be put under the context of the basic conflicts so as to be discussed more thoroughly, and resolve the inner tension between technology standard and patent. Based on the aforesaid inner conflicts, this thesis, in section one, will illustrate the basic interest conflicts existing in the licensing of SEP, discussing the supplementary benefits and interest conflicts during the licensing of SEP, followed by the basic reflections of the interest conflicts shown in the licensing of SEP; in section two, the thesis will discuss the means taken for the interest balancing in the licensing of SEP, which mainly involves FRAND principle as the basic balancing measurement and the roles played by competition law for the balancing of interest conflicts dynamically along with the explanation on the related approaches taken by competition law, as well as the general review on the balancing practice by means of anti-monopoly by different countries worldwide, with eventually summarizing the basic guideline for the practice of our country when balancing the interests in this area; in section three, this thesis will discuss the interest balancing for calculating the royalty for the licensing of SEP with putting forward the basic conflicts reflected during the calculation of royalty, while have an elaboration on the basic tactics for the calculation of royalty under the principle of balancing with relying on the existing experience, at the same time, propose some advices for the royalty calculation in practice by the judiciary of our country under the principle of interest balancing; in section four, this thesis will give two potential assumptions which might happen after the imposition of injunctive remedy during the licensing of SEP and explain why it is reasonable for the holder of SEP to seek the injunctive remedy, and then have a discussion on the balancing standard for deciding to grant injunctive remedy or not, and give some advices for the improvement of the relevant practice in our country at the end.