According to China Intellectual Property News, if the implementation of technical standards must be based on the premise of patent infringement, even if other technologies can be included in the standards, the patent is also a necessary patent for related technical standards.
Standards refer to normative documents that are formulated by consensus and approved by recognized institutions, used together and used repeatedly in order to obtain the best order within a certain range.
Although patent standardization can promote innovation, improve efficiency, reduce consumers' adaptation costs and eliminate international trade barriers, it also greatly enhances the position of standardization organization participants in patent licensing negotiations, leading them to demand unfair, unreasonable and discriminatory patent licensing fees from standard users, namely patent licensees.
Extended data:
Policy thinking on the related system of essential patents in FRAND standard;
In the case of Huawei v. Interactive Digital Corporation of America, in order to evaluate the standard necessary patent license fee in line with FRAND principle, the courts of first and second instance mainly considered the following three policy factors: total amount control, anti-patent hijacking and anti-patent license fee superposition.
The first is the total amount control, that is, the license fee of standard essential patents cannot exceed a certain proportion of the product profits of users of standard essential patents.
The court of first and second instance of Huawei case held that technology, investment, management and labor * * * jointly create product profits, and patented technology is only one of the factors that create product profits, so the license fee required by the patentee cannot exceed the total profit of the user's product under any circumstances, otherwise it cannot be considered that the license fee conforms to the FRAND principle.
The second is anti-patent hijacking. Patent hijacking refers to the ability of the patentee to claim more than the value of the patented technology itself, as well as the ability to try to grab the value of the technical standards or regulations themselves.
In the judgment of Huawei v. Interactive Digital Corporation of America, the courts of first instance and second instance did not explicitly use the concept of "anti-patent hijacking", but both courts held that the patentee of standard necessity should not benefit from the standard itself, and its contribution lies in innovative technology rather than the standardization of its patent.
In other words, the two courts actually think that the necessary patent license fee should prevent the occurrence of patent hijacking. The third is anti-royalty superposition.
The superposition of patent license fees refers to the phenomenon that the licensee pays license fees to the necessary patentees of multiple different standards for one standard. Huawei's courts of first and second instance held that a standard or technical specification contains a number of standard essential patents, and any standard essential patentee can only get the license fee it deserves.
National Intellectual Property Strategy Network-Standard Essential Patents