Anti-monopoly Regulation Of High-priced Standard-essential Patents That Abuse Market Dominance

In recent years,cases of monopoly high price of standard essential patents(SEPs)frequently occur at home and abroad.Issues related to the high licensing fees charged by SEP holders have sparked disputes and discussions in various countries.In reality,there are two different anti-monopoly attitudes towards high-price licensing of SEPs.One is non-interventionism,believing that intervention to anti-monopoly price will hinder the innovation and research of knowledge as well as the development of industry and culture.The other is interventionism,which holds that the excessive pricing by SEP holders may constitute an abuse of market dominance,disrupting the market competition order and distorting the function of the competition to effectively allocate scarce social resources and thus hindering the sound development of society and economy.In view of the highly divergent practice and theory of anti-monopoly regulation of high-price licensing of SEPs,it is necessary to conduct a more in-depth examination of the actual impact of high-price licensing as well as to consider the possible problems of anti-monopoly regulation of high-priced licensing of SEPs.And the actual impact of high-price licensing and the possible problems of anti-monopoly regulation of high-priced licensing can provide a basis for determining whether to adhere to interventionism or non-interventionism for high-priced licenses.Empirical research shows that high-priced licensing of standard essential patents does not cause systemic actual damage.And anti-monopoly regulation to high-priced licensing is likely to cause erroneous regulation that cannot be automatically corrected by the market and causes adverse effects to the society.Based on this,a judgment can be made: anti-monopoly regulation of high-priced licenses should be modest,and this should be the basic principle of specific anti-monopoly regulation.The specific regulatory procedures of anti-monopoly include judging the market dominance and identifying the abuse of market dominance.The existence of market dominance is the premise for the identification of the abuse of market dominance.China’s Anti-Monopoly Law mainly uses market share as the benchmark,and presumes market dominance based on the market share.In this process,other factors are comprehensively considered.However,for standard-essential patents,in the analysis of specific market factors,the clearly listed factors by the Anti-Monopoly Law restricting market power cannot clearly and comprehensively reflect the characteristics of standard-essential patents,and it is difficult to provide clear and scientific guidance on logical reasoning,as a result that SEP holders are in fact automatically identified as having a dominant market position,contrary to the principle of modesty.Factors that may limit the market dominance of patentees,such as the probability of patent rights,the necessity of standard essential patents,the dynamic nature of standard-setting and the existence of a dynamic competitive market,should be taken into consideration.Other factors that may restrict the market power of standard-essential patent holders should be continuously discovered and summarized from practice,and the judgment of market power should be dynamically adjusted and improved.The identification of abuse of dominant market position is also the judgment of illegality of high-priced licensing.The principles on which the abuse of dominant market position is identified include the perse rule and the rule of reason.The particularity of the judgment on the illegality of high-priced SEP licensing is that there must be a "reasonable license fee" as the premise,and the "reasonable license fee" should be used as the reference point for the "illegal high price".However,so far,the existing methods for calculating license fees are insufficient,and a "reasonable license fee" that is in line with substantive justice is out of reach.Due to this particularity,it is more reasonable to adhere to the principle of rule of reason to analyze the illegality of high-priced licensing of standard-essential patents,which is also an inherent requirement of the principle of restraint in anti-monopoly regulation.