| Standard-essential patents refer to patents that have been incorporated into technical standards.When standard implementers need to use standard-essential patents,they have to negotiate royalties with the patent holder,but both parties tend to pursue maximizing interests.This also makes it difficult for them to reach an agreement on the amount of royalties,which in turn leads to disputes over standard essential patent royalties.In order to regulate the determination of royalties for standard-essential patents,the Organization for Standardization proposed the FRAND principle,that is,the principle of "fair,reasonable and nondiscriminatory".Courts around the world have basically recognized the FRAND principle and supported the adoption of a judicial determination method of royalties that conforms to the FRAND principle,but there is no consensus on the choice of the determination method,and the existing methods of determining royalties are defective.At present,Chinese courts mainly adopt the comparable transaction method and the top-down method in judicial practice,but there are also many problems,mainly in the following aspects: First,the applicable basis of the comparable transaction method and the top-down method exists.There are certain defects;second,the internal considerations of the determination method are insufficient and the relevant arguments of the court are too rough;third,there is a lack of applicable supporting systems for the current FRAND judicial determination method.Therefore,in order to improve the judicial determination method of FRAND royalties for standard essential patents in my country,we can first use a combination of methods that embed the comparable transaction method and the hypothetical transaction method under the top-down framework,that is,in the overall determination of the top-down method.The comparable transaction method is embedded in the step of accumulating the royalty,which reduces the calculation difficulty of the overall cumulative royalty.In addition,the hypothetical transaction method is embedded in the step of determining the contribution degree of the patent in the standard,which makes the calculation method of the contribution degree more scientific and specific.Secondly,improve and refine the consideration factors of the judicial determination method of FRAND royalties in my country on the base of the combination of methods,and strengthen the court’s full demonstration of the consideration factors;finally,establish a third-party review mechanism for SEPs and build FRAND A relatively open system of judicial determination of royalties. |
