Research On FRAND Principle Of Standard Essential Patents

With the increasing number of disputes related to standard essential patents,FRAND has been paid more attention to.The FRAND principle is regarded as a tool to ensure the equal status of the executor and the patentee of the standard essential patent,and it appears in the judicial practice more and more.However,there are still many deficiencies in the provisions of FRAND principle in China.Therefore,it is of great practical significance to analyze and summarize the deficiencies in legislation and justice,and on this basis,to put forward suggestions for its improvement.Based on a brief introduction of the concept and characteristics of standard essential patents,this thesis discusses the connotation,legitimacy and legal nature of the FRAND principle.To clarify the relationship between FRAND principle and RAND principle,to demonstrate the rationality of unilateral legal act with conditions as the legal nature of FRAND principle;By summarizing and analyzing the current situation of the application of FRAND principles in China,including the cases in which the principle is applied in the judicial practice of China.After analyzing and summarizing the existing problems in China,and then referring to the experience of judicial application of FRAND principle of standard essential patents abroad and combining with the reality of our country,this thesis puts forward some suggestions to improve the application of the principle.In view of the issue that the legal nature and legal effect of the FRAND principle is not clear at the legislative level,It is suggested that the unilateral legal act with conditions should be regarded as the legal nature of the FRAND principle in legislation and the legal effect of the principle should be specified.In view of the fact that the current normative basis of the FRAND principle in China tends to limit the scope of application of the principle to standard essential patents in recommended standards,In order to broaden the scope of application of FRAND principle,it is suggested that the FRAND principle should be applied to compulsory standards,recommended standards and standard essential patents in international standards.In view of the problem that the scope of information disclosure of standard essential patents has not been clarified at the legislative level,it is suggested that the compulsory standards and recommended standards of standards essential patents are required to undertake the obligation to disclose information.Due to the particularity of international standards,the standard essential patents in international standards are based on the principle of indicating their own standard essential patent status,and the scope of disclosure of the application of domestic standards essential patents is an exception.In addition,it is suggested to include the same patent,modified patent information,specific technical scheme and license fee into the scope of disclosure.In view of the issue that whether there is fault on both sides and the extent of fault is regarded as a single important element of injunction at the legislative and judicial levels,At the legislative level,it is proposed to extend the time to consider whether the parties are at fault for the failure of negotiations to the end of the litigation,and to increase the procedural consideration conditions for the issuance of injunctions.At judicial level,the court should be cautious to issue injunctions,and the injunctions should be regarded as the ultimate remedy.In view of the light liability for violating the FRAND principle,it is suggested that the party who violates the FRAND principle should bear punitive damages in the legislative level,and the court should determine the amount of punitive damages according to the circumstances of each case.In view of the problem of the single calculation method of the standard essential patent license fee specified at the legislative level and applied by the courts at the judicial level,At the legislative level,it is suggested that the two benchmarks for determining the license fee should be clarified,and at the judicial level,the court should use a variety of calculation methods to determine the range of license fee.