Judicial Determination of Standard Essential Patent Licensing Fees: Dilemmas and Optimization Strategies

Abstract

In judicial practice, there is currently no unified calculation standard for the licensing fees of standard essential patents (SEPs). The main reasons for the difficulties in determining licensing fees are the ambiguity of the FRAND (Fair, Reasonable, and Non-Discriminatory) principle, the lack of universally applicable allocation rules, the complexity of influencing factors, and inconsistent calculation methods. To calculate SEP licensing fees, it is necessary to clarify the different applicable values of allocation rules and overall market value rules, specify the SEP holder’s FRAND licensing obligations, the SEP holder's information disclosure obligations, and the standard-setting organization’s obligation to review necessity. A comprehensive approach to considering the specific circumstances of each case can improve the accuracy of SEP licensing fee calculations.