In essence,the negotiation of license fees on standard essential patent(SEP)belongs to a kind of market be⁃havior,and the pricing right should be given to the market subjects under the requirements of patent law.In re...In essence,the negotiation of license fees on standard essential patent(SEP)belongs to a kind of market be⁃havior,and the pricing right should be given to the market subjects under the requirements of patent law.In recent years,the frequent disputes on SEP license fees witnessed in the industrial and academic worlds,together with the lack of systematic supporting functions like FRAND,make SEP pricing excessively reliant on judicial judgment in practice.Fortunately,a variety of pricing methods have been proposed by theoretical research and practiced in judicial cases,which provide possible solutions for the license fee pricing of SEP from the operational level.In this paper,by focusing on the characteristics of the existing SEP pricing methods in the academic fields and judicial system,the dispute caused by license fees of SEP is clarified firstly,then by combining and interpreting twelve existing pricing methods of license fee of SEP with academic literature and judicial cases,four categories of methods are composed based on the application stages and calculation logic.Thirdly,the application barriers and dilemmas caused by the inherent limita⁃tions of the four categories of methods are analyzed,and the possible ways to put these methods into practice are ex⁃plored.Lastly,suggestions are presented from the aspects of preconditions for application,pricing stages,dispute reso⁃lution mechanisms,and comprehensive applications.The purpose of this paper is to provide enlightenment for getting back on track with the pricing right and further optimization of the pricing mechanism of license fees of SEP.展开更多
Antitrust examination of discriminatory patent licensing fees imposed by companies who own standards-essential patents(SEPs) is a difficult issue in antitrust law enforcement. After studying Huawei's litigation ag...Antitrust examination of discriminatory patent licensing fees imposed by companies who own standards-essential patents(SEPs) is a difficult issue in antitrust law enforcement. After studying Huawei's litigation against IDC and China's anti-monopoly investigation of Qualcomm, this paper creates a vertical oligopolistic game theory model to demonstrate that discriminatory licensing fees imposed by firms with patent monopoly will lead to the collection of high licensing fees from downstream low-cost firms, weaken their competitive advantage, reduce their output and market share, impede their follow-up innovations, and generally harm the social welfare. Therefore, charging high discriminatory licensing fees constitutes an act that harms competition and should be prohibited by antitrust law. Antitrust examination of discriminatory licensing fees should make assessments primarily on the basis of the FRAND principle. Antitrust examination may adopt a triple-structure method to assess the reasonableness of licensing fees, but antitrust authorities should avoid directly prescribing the level of licensing fees and should safeguard the effectiveness of transaction mechanisms based on free negotiations among micro-level entities. Antitrust remedies should follow the principle of "intervening in the price formation mechanism rather than prescribing the level of licensing fees."展开更多
基金Hierarchical Identification and Cross-Layer Correlation of Key Core Technologies from the Perspective of Industrial Chain Structure (National Social Science Fund of China, 24BTQ067)Chongqing Education Commission (CEC) Funding:Research on the Co-governance Mechanism of Patent Quality Based on the Dual-Filter Perspective(24SKGH213)Chongqing Graduate Education and Teaching Funding:Research on the Interdisciplinary Law of Intellectual Property and Optimization of Graduate Talent Training Mode(yjg213122)。
文摘In essence,the negotiation of license fees on standard essential patent(SEP)belongs to a kind of market be⁃havior,and the pricing right should be given to the market subjects under the requirements of patent law.In recent years,the frequent disputes on SEP license fees witnessed in the industrial and academic worlds,together with the lack of systematic supporting functions like FRAND,make SEP pricing excessively reliant on judicial judgment in practice.Fortunately,a variety of pricing methods have been proposed by theoretical research and practiced in judicial cases,which provide possible solutions for the license fee pricing of SEP from the operational level.In this paper,by focusing on the characteristics of the existing SEP pricing methods in the academic fields and judicial system,the dispute caused by license fees of SEP is clarified firstly,then by combining and interpreting twelve existing pricing methods of license fee of SEP with academic literature and judicial cases,four categories of methods are composed based on the application stages and calculation logic.Thirdly,the application barriers and dilemmas caused by the inherent limita⁃tions of the four categories of methods are analyzed,and the possible ways to put these methods into practice are ex⁃plored.Lastly,suggestions are presented from the aspects of preconditions for application,pricing stages,dispute reso⁃lution mechanisms,and comprehensive applications.The purpose of this paper is to provide enlightenment for getting back on track with the pricing right and further optimization of the pricing mechanism of license fees of SEP.
文摘Antitrust examination of discriminatory patent licensing fees imposed by companies who own standards-essential patents(SEPs) is a difficult issue in antitrust law enforcement. After studying Huawei's litigation against IDC and China's anti-monopoly investigation of Qualcomm, this paper creates a vertical oligopolistic game theory model to demonstrate that discriminatory licensing fees imposed by firms with patent monopoly will lead to the collection of high licensing fees from downstream low-cost firms, weaken their competitive advantage, reduce their output and market share, impede their follow-up innovations, and generally harm the social welfare. Therefore, charging high discriminatory licensing fees constitutes an act that harms competition and should be prohibited by antitrust law. Antitrust examination of discriminatory licensing fees should make assessments primarily on the basis of the FRAND principle. Antitrust examination may adopt a triple-structure method to assess the reasonableness of licensing fees, but antitrust authorities should avoid directly prescribing the level of licensing fees and should safeguard the effectiveness of transaction mechanisms based on free negotiations among micro-level entities. Antitrust remedies should follow the principle of "intervening in the price formation mechanism rather than prescribing the level of licensing fees."
