Research On Legal Issues Of Standard Essential Patent License Fee

Standard essential patents refer to patents that are necessary or must be used to implement a certain technical standard.The determination of the licensing fee for standard essential patents has become a key issue for all parties in the application of standard essential patents;From the perspective of judicial practice,the standard essential patent license fee is also the core dispute point of such disputes,so it is of great significance to discuss the standard essential patent license fee from the perspective of basic theory,legislation and judicial practice.With regard to the standard essential patent license fee,this paper will explain its legal problems from three aspects of theory,legislation and judicature: in theory,the determination of the standard essential patent license fee needs to comply with the FRAND principle,but due to the ambiguity of the FRAND principle,both parties expect to use this feature of the FRAND principle to "unconsciously" maximize their own interests in the relatively vague zone,if not handled properly,This will cause disputes;From the legislative level,China has no special legislation on standard essential patents.The provisions on standard essential patents are scattered in relevant basic laws,administrative regulations,local regulations and judicial interpretations,and there are problems such as scattered provisions and relatively low effectiveness;From the judicial level,due to the late start of the research on standard essential patents in China,there is still a certain gap between the trial experience and that of foreign courts.The judicial authorities lack specific guiding rules when determining the licensing fee of standard essential patents,which leads to the lack of reasonable argumentation of the basis of the judgment of the case,as well as the vague consideration of the selection factors.Based on the basic theory of standard essential patent,this paper discusses the FRAND principle that should be followed when calculating the standard essential patent license fee;In the aspect of legislation,it focuses on the legislative content of standard essential patents in China and the problems existing in the legislation;At the judicial level,this paper studies and analyzes the famous cases of standard essential patent licensing fees at home and abroad,and summarizes the problems in confirming the standard essential patent licensing fees;The fourth chapter of the paper,combined with specific cases,discusses the process and specific methods used by foreign courts in determining the standard necessary patent license fee.In the end,combined with the legislative and judicial practice of standard essential patents in China,around the issue of standard essential patent licensing fees,the following suggestions are put forward: firstly,it is suggested to further refine the FRAND principle into specific rules;Secondly,in the aspect of legislation,we can carry out special legislative work on standard essential patents and make special provisions on the determination of license fees,or add a chapter on standard essential patents in the Patent Law to specify the determination method of standard essential patent license fees;In the judicial aspect,it is suggested that the court should respect the objective laws of the market,focus on mediation,build a diversified reference factor system,and use various methods to resolve disputes when resolving disputes over standard necessary patent licensing fees.At the end of the paper,from the perspective of the parties,the paper puts forward suggestions that both parties can determine the licensing fee through arbitration and allow the SEP obligee to enjoy certain patent "premium" rights.