标准必要专利许可费率综合计算方法研究

A research on the comprehensive calculation method of the essential standard patent license fee rate

本文梳理了标准必要专利许可费计算司法实践和学术研究成果,提出了标准必要专利许可费率综合计算方法。通过企业财务成本费用利润归类计算专利技术成本费用利润贡献占比,通过计算产品全部标准必要专利数占全部专利数比例计算标准必要专利数与全部专利数量占比,通过技术功效矩阵专利价值分析计算专利权人标准必要专利分值与全部必要专利分值占比。通过将三个占比相乘得出标准必要专利的许可费率,为企业专利许可、司法审判提供了一个新的方法。我国应建立企业技术贡献会计核算制度,完善技术要素贡献企业会计核算方法,建立标准必要专利认定标准和第三方认定制度,制定技术功效矩阵标准必要专利价值计算基本规范和流程。

This paper reviews the judicial practices and academic research articles of the Essential Standard Patent(ESP) license fee rate calculation methods, and puts forward a Comprehensive Calculation Method which is based on the Cost-Expense-profit Analysis Method, the ESP Contribution Rate Analysis method, and the ESP Technical Efficiency Matrix Value Analysis Method. From classifying the costs and expenses of technology, investment, management and labor, using the Cost-Expense-profit Analysis Method to calculate the proportion of technical elements in the four elements, the real technology and the patented technology contribution proportion to the product profit can be got. After getting the real patented technology contribution proportion to the product profit, it is needed to get ESP′s contribution to the patented technology by calculating the proportion of the total ESP number to the total patent number. The Patent Pool Comparison Method considers that joining the patent pool has the privilege of free exploitation of other patents in the patent pool. However, each ESP position and function in the polled ESPs is different, so the license fee rate should be calculated by evaluating the value of each patentee and all patentees′ ESP′s value scores. From using the Technical Efficiency Matrix Value Analysis Method to calculate the ESPs′ value score to the patent pool′s ESP value scores, the contribution proportion of each patentee′s ESP′s value scores to total ESP′s value scores can be got. In the end, by multiplying the above three proportions, the ESP license fee rate each patentee should pay or collect in the pooled ESPs can be got. This comprehensive calculation method of the three methods is time-sequential, which not only solves the problems and shortcomings of the single method, but also scientifically and accurately solves the calculation problem of ESP license fee rate, and provides a new method for the patent license negotiation and the judicial trial in ESP license fee rate calculation. This method provides a reasonable theoretical and methodological basis for calculating the ESP license fee rate in patent license negotiation and judicial trial, and also provides a relatively reasonable reference for anti-abuse of intellectual property rights. In order to promote the development of the ESP license fee rate calculation method, this paper puts forward some suggestions. The first is to establish the accounting system reflecting enterprises technology contribution, the comparison table should be established by accounting four elements of technology, capital, management and labor and then accounting the enterprise′s costs and expenses of technology itself. The second is to improve the accounting method reflecting enterprises technology contribution. Enterprises should be allowed to take research and development expenditure, technology import cost, technology import digestion cost, intellectual property cost and other costs related to the technological intellectual property creation as intellectual property costs. The third is to establish the ESP recognition standard and third-party recognition system, and establish the basic institutional norms for the third-party ESP recognition to enhance the ESP assessment recognition degree. The fourth is to formulate the basic Technical Efficiency Matrix ESP value score calculation specification and process, and improve the ESP Technical Efficiency Matrix construction method and ESP score assignment method.