摘要
The obligation to license standards essential patents on'Fair,Reasonable and Non-discriminatory'( F / RAND rule) terms are designed to eliminate the potential for 'holdup ' brought by patentees whose patents are thereafter asserted at unreasonable rates,and to fully compensate these patentees on'fair,reasonable and non-discriminatory'terms. Due to the globalization of manufacturing and technology, differing national approaches towards standardization and the role of the market,and the ambiguity of the F / RAND concept itself,related litigations occur quite often in major jurisdictions for emerging new technologies,such as those incorporated into smart phones and cellular networks. As the first decision in which the license rates were determined all over the world,Huawei v.IDC has had a great impact both home and abroad. Starting with a briefing and analysis of the Huawei decision,while making reference to the relevant decisions in the United States,the European Union,Japan and other jurisdictions,this article studies such significant issues as the definition, values, determination of F / RAND license rates and interventions thereto by antitrust laws in China, and provides some suggestions for the improvement of the F / RAND rule both in China and in other markets.
标准必要专利的"公平、合理、无歧视规则"(规则)设计的目的是为了消除专利纳入标准所带来的挟持效应,并使专利持有人获得充分回报。由于F/RAND含义的模糊性,有关F/RAND许可的诉讼在各主要法域均有发生。华为公司诉数字交互集团案(华为案),作为世界上首例通过判决确定F/RAND许可费率及专利持有人因违反F/RAND规则而承担反垄断法责任的案件,在国内外产生了重大影响。本文通过对华为案的介绍,并结合美、日、欧等法域的相关最新判例,研究了F/RAND规则含义、价值、F/RAND许可费率的确定及其反垄断规制等重要问题,并就F/RAND规则及违反该规则的损害赔偿数额的计算等提出了完善建议。
