2025年7月4日 周五
On the legal nature of standard essential patent FRAND commitment
CSTR:
Author:
Clc Number:

D913

  • Article
  • | |
  • Metrics
  • |
  • Reference
  • |
  • Related
  • |
  • Cited by
  • | |
  • Comments
    Abstract:

    The principle of self-determined obligation is derived from the principle of equality of civil law. That is, one can only set obligations for himself, and no one can set obligations for others. The essence of concluding a contract is that a person sets debts for himself in the relative relationship. To conclude a bilateral contract is that both contracting parties set their own debts as a condition of exchange. Although the meaning of "Fair, Reasonable and Non-Discriminatory" is not clear, it is clear that the license is not unconditional, but paid. The license fee, as a license condition, should be the debt set by the implementer of the standard essential patent. When this exchange condition is not clear, it is impossible for the standard essential patentee to make a declaration of will of licensing. The FRAND commitment made by the standard essential patentee to the standard-setting organization does not contain effect meaning. It is not a juristic act. It is a factual act, an invitation to offer. The standard essential patentee has not set any debt for himself due to FRAND commitment, and the standard-setting organization and potential implementers have not obtained any creditor’s rights due to FRAND commitment. The third-party beneficiary contract comprises a master contract and a unilateral contract concluded by the debtor of the master contract who promises to the third party unilaterally. However, the standard essential patent licensing contract is a bilateral contract and an onerous contract. For this reason, there are no third-party beneficiary contracts between the standard essential patentee and the standard-setting organization. Potential implementers do not constitute third-party beneficiaries. According to the principle of self-determined obligation, even if the law can infer that the standard essential patentee sets for himself the obligation to tolerate the use of standard essential patent by potential implementers through his implied declaration of will, it cannot infer that the standard essential patentee sets for potential implementers the obligation to pay licensing fees through his implied declaration of will. We can only infer from the implied licensing rule that the license is unconditional, which conflicts with the patentee’s purpose of pursuing consideration, and the nature of the standard essential patent licensing contract. Even if the standard essential patentee has made the FRAND commitment, the relationships between him and potential implementers are still unspecified, and there is no pre-contract obligation. Potential implementers also do not enjoy any superior position based on the rights of formation. They cannot set obligations of commitment or contracting for the standard essential patentee. Otherwise, it means that the implementers can impose their will on the standard essential patentee, violating the principle of equality of civil law.

    Reference
    Related
    Cited by
Get Citation

李逸竹.标准必要专利FRAND承诺之法律性质辨析[J].重庆大学学报社会科学版,2023,(1):213~227

Copy
Related Videos

Share
Article Metrics
  • Abstract:
  • PDF:
  • HTML:
  • Cited by:
History
  • Online: February 28,2023
Article QR Code