Research On Judicial Determination Of Standard Essential Patent License Fee

With the development of technical standardization,the judicial determination of reasonable royalty for Standard Essential Patent has become the focus and difficulty of international attention.When the patent is included in the standard,the licensing negotiation ability of the standard holder will be greatly improved,which will easily lead to the negative social effects of "patent hijacking" and "patent royalty stacking".In order to curb its adverse effects,most standards-setting organizations require the right holders to make FRAND commitments in their intellectual property policies.Around the determination of royalty,the issues discussed in academia and judicial practice are mainly the connotation and legal nature of FRAND commitment,the main principles and factors considered in judicial decisions,the charging base and specific calculation methods of royalty.In this paper,the above questions are answered one by one through the theoretical analysis of each problem and the analysis of domestic and foreign cases,and the predicament in the practical application of the used billing base and calculation approach is emphatically discussed.For example,The Entire Market Value rule causes the concern of excessive compensation and patent hijacking and royalty stacking," The Smallest Salable Patent-Practicing Unit rule ignores the coordination and complementary effect between components,and is low in technical operability.The Incremental Value Approach is not perfect in theory and has low practicability.The hypothetical negotiation Approach does not involve specific calculation;Difficulty in finding suitable licensing agreements under comparable agreement Approach,The overall rate of the top-down approach is difficult to determine and the contribution of each standard essential patent cannot be quantified.Finally,in view of the above problems,this paper puts forward suggestions to improve the judicial application of Standard Essential Patent licensing fees.First of all,in order to determine the appropriate Standard Essential Patent royalty calculation base,it is suggested that the market value should be given priority.When there is no market value for reference,The Entire Market Value rule may be chosen as the primary principle for determining the standard essential patent royalty.Secondly,the improvement of the calculation approach also focuses on the improvement of the comparable license approach and top-down approach.The application of comparable license approach should establish the standards for selecting comparable protocols and disassembling selected protocols.The application of top-down method should clarify the applicable scope of the average distribution rule and perfect the calculation process of individual patent value proportion.In addition,based on the characteristics of many obscure economic issues involved in the determination of FRAND royalty,this paper advocates to attach importance to the role of expert testimony in cases involving standard essential patent royalty,helping judges to find out the technical facts and determine the calculation formula,actuarial royalty.