| Innovation is the first driving force to lead development.It has changed the situation of China's intellectual property system that started late,has a weak foundation,and has a weak foundation.With this,the number of patents in China is increasing day by day.For patents,quantity is the foundation and quality is the key.An important recognition factor for patent quality is the standard,so patent standardization has become an important indicator to measure the market competitiveness of enterprises.The integration of patents and standards produces standard essential patents,but patents usually represent private rights and interests,and standards contain attributes of public interest.This deep-rooted contradiction also lays a foundation for problems that arise in the process of patent standardization.ISO solved the problems of patent holdup and patent licensing fee stacking to a certain extent by formulating the FRAND principle.However,it is used strategically by standard implementers in practical applications,and it will delay negotiations on the ground that the license conditions of standard essential patent owners violate the FRAND principle,with a view to achieving its purpose of paying less or not paying license fees.This “FRAND hold-up” not only affects the development of individual enterprises,but also has a certain impact on the market economy.At present,all parties do not attach importance to “FRAND hold-up”,and there is no effective system of constraints and solutions,so it is necessary to study this problem.The main body of this paper is divided into four chapters.The first chapter is the basic understanding of “FRAND hold-up”.Starting from the legal nature of the act,the relationship between patent hold-up and “FRAND hold-up” is clarified.Both of these phenomena will break the dynamic balance of standard necessary patent licensing.“FRAND hold-up” is the result of external conditions and internal causes,so to find solutions,we need to analyze the formation mechanism of “FRAND holdup”.The second chapter is based on the previous discussion,from which it is found that the licensing fee is the core factor of the dispute between the parties,and also the key to compensation for damages when infringement occurs.Through the comparison of various methods of license fee calculation,the advantages and disadvantages of various methods are summarized,which can be used for reference in the judicial practice of our country.The third chapter mainly analyzes the standard essential patentee's request for injunctive relief after “FRAND hold-up”.There are some differences among countries in the attitude of standard essential patentee seeking injunction.At present,most of them still adhere to the principle of no pass and pass as an exception,which is to protect the interests of standard implementers in the trend of FRAND principle.In the aspect of the perfection of injunctive relief in our country,what we need to do is to prevent the invalidation of injunction,to explore the applicable conditions of injunction under mixed fault,and to do a good job in the connection of patent law and anti-monopoly law.The fourth chapter is mainly through specific measures to solve “FRAND hold-up”.In terms of post relief,we should increase efficient arbitration to solve disputes.In addition,the patentee of the standard is required to expand the disclosure of information,so that the information of both sides is in an equal position,which is also the key to reduce the transaction cost in Coase theorem.Finally,the establishment of FRAND licensing negotiation mechanism requires both parties to be honest and trustworthy,and fulfill their respective obligations in the negotiation.With patent standardization becoming the trend of science and technology development,it is urgent to solve the problem of “FRAND hold-up”.However,we can't achieve quick success and instant benefits in one move.We need these measures to work together in many ways to root out “FRAND hold-up”. |
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