标准必要专利许可费司法裁定的局限及出路

Limitations and Solutions of Judicial Adjudication on Standard Necessary Patent License Fees

当标准必要专利许可双方在许可谈判中无法就费率等条件达成一致时,司法诉讼往往成为双方解决争议的首要选择。但许可条件本是双方意思自治的重要表现,由法院裁定的许可费是否符合FRAND原则、是否有悖司法的谦抑性、其判决是否可以强制执行、一揽子的许可于市场主体发展是否有益均存有疑问,且目前的司法实践尚未给出最优解。法院应当积极调整自身角色和定位,为当事人营造出透明、公正、有效的谈判环境,尽量督促双方自行达成一致的许可条件。

When both parties to a standard essential patent license are unable to reach an agreement on term such as fee rates during license negotiations,judicial litigation often becomes the primary choice for both parties to resolve disputes.However,the licensing conditions are an important manifestation of mutual autonomy,and there are doubt about whether the licensing fees determined by the court comply with the FRAND principle,whether they contradict judicial modesty,whether their judgment can be enforced,and whether a package of licenses is beneficial for the development of market entities.Moreover,the current judicial practice has not yet provided an optimal solution.This article believes that the court should actively adjust its role and positioning,create a transparent,fair,and effective negotiation environment for the parties,and try to urge both parties to reach a consensus on the licensing conditions themselves.