FRAND Holdup and Its Solutions Liyang ,Professor

Transcript:FRAND Holdup and Its Solutions Liyang ,Professor:
FRAND Holdup and Its Solutions Liyang ,Professor of Sun Yat-Sen University School of Law Aim Standardization of patent may lead to patent holdup and royalty stacking.However,uncertainty and ambiguity of FRAND provided by SSOs to be used for mitigating patent holdup and royalty stacking and one-sided denial of injunction against standard essential patent(SEP) implementer has resulted in FRAND holdup and excessively low royalty,the interest balance between SEP holder and SEP implementer has been broken by FRAND holdup.A new balance mechanism must be found to effectively protect patent rights and fully promote utilization of patented technologies. My Research Questions FRAND Holdup and Its Solutions Focus on the following often neglected issues: 1.The reasons why FRAND holdup happen? 2.Under what circumstances can SEP holder seek injunction relief to avoid FRAND holdup? 3.Should SEP holder disclose the comparable royalties to SEP implementer to avoid FRAND holdup? 4.What kind of rules should be designed to judge whether SEP implementer does FRAND holdup or not? 5.What kind of rules should be designed to prevent FRAND holdup(and patent holdup)? A Few Important Findings 1.The risks of patent holdup and royalty stacking have been grossly exaggerated. 2.FRAND holdup has become an issue extremely perplexing SEP holder. 3.It’s almost impossible for different jurisdictions to find substantive FRAND royalty. 4.In some circumstances,it’s necessary for SEP holder to seek injunction relief in order to avoid FRAND holdup. 5.To prevent FRAND holdup and mitigate patent holdup,SEP holder should disclose the comparable royalties to SEP implementer. Therefore ,my research provides an explanation why FRAND holdup happens,and designs a set of rule to avoid FRAND holdup and to mitigate patent holdup in the meantime. Outline of Presentation I.Background 1.Standardization of Patent (1) To facilitate interoperability of different manufacturers’ products and increase price competition. (2)To decrease comsumer’s switching cost. (3)To promote utilization of patented technology. 2.SSOs and intellectual property rights policy II.The risks of patent holdup and FRAND holdup 1.What’s patent holdup and FRAND holdup 2.The risks of patent holdup and FRAND holdup III.The reasons why FRAND holdup happen. 1.The risks of patent holdup is grossly exaggerated. 2.The uncertainty and ambiguity of FRAND 3.One-sided denial of injunction 4.The information asymmetry IV.Solutions to FRAND holdup(and patent holdup at the meantime) 1.Unavoidableness of patent holdup and FRAND holdup 2.Four tasks of any possible solutions. (1)to solve the possibility of injunction (2)to solve disclosure of the comparable royalties. (3)to stimulate SEP holder and SEP implementer to successfully negotiate