"FRAND Hold-up" Of Standard Essential Patent Licensing And Solutions To It

In the era of knowledge economy,patents and standards such as the wings of a bird and the two-wheeled vehicle are the necessary foundation for the healthy development of the market.Patent standardization has become a new strategic high ground for innovation and development,and has become an important criterion for testing the strength of the market competitiveness of operators.Developed countries and some developing countries are focusing on patent standardization work,with a view to gaining market discourse and gaining maximum economic benefits.Standards-necessary patents are the product of this development trend and are a fusion of patents and technical standards.Patent rights have exclusive rights and private interests.Technical standards are public and public welfare.Natural contradictions between the two have resulted in the predicament of standard essential patent licenses.Patent hijacking and stacking of patent fees.This hinders the rational use of patents,healthy competition among enterprises,and ultimately infringes upon the interests of consumers.In order to resolve the negative impact of standard-essential patents and balance the interests of all parties,FRANDadvocated by the government and the standardization organizations have emerged.The FRAND is generally considered to be the most effective institutional arrangement for resolving SEP disputes.The FRAND is essentially a code of conduct for the implementation of standards.It establishes a behavioral framework for standard licensing stakeholders.The purpose of the FRAND is to use the guidelines to regulate the abuse of market status of standard essential patentees and to prevent patent holders from taking advantage of unfair interests.The principle of FRAND is intended to regulate the patent hijacking of standard essential patentees,but due to the abstractness and uncertainty of the FRAND itself,and the excessive restrictions on the ban on standard-essential patent right holders,etc.Implementers use.The actual and potential standard-essential patent users make strategic use of the FRAND,and use the conditions of the standard essential patent owner's license that do not comply with the FRAND as an excuse to accuse the right person,thereby deliberately delaying the process of permitting the standard essential patent,resulting in the inability to meet the standard requirements.The patent owner agreed.In order to achieve the purpose of exempt from payment or reduce the payment of the standard essential patent license fee.This resulted in the reverse hijacking of standard essential patent enforcers against standard essential patent holders,namely FRAND hold-up.In the current domestic and international theories and practices,there is no mature normative framework for the standard and necessary patent licensing system,and insufficient attention has been given to "FRAND hold-up",let alone formulating a corresponding system to regulate.In the face of the increasing number of standard-essential patent licensing disputes,the market will guarantee the healthy and sustainable development of the market for standard essential patents.It is necessary to further explore the causes of the "FRAND hold-up" and analyze the key problems in eliminating the "FRAND hold-up",from the use of injunction relief and anti-monopoly review respectively,to establish a mechanism for prior disclosure and disclosure of royalties,and to introduce "notices and counter notifications".Three aspects of the rules explore ways to solve the FRAND hold-up.