On the Criteria for Identifying Unfairly High Prices for Standard-essential Patent Licensing

Abstract

It is of practical significance for China that the Anti-monopoly Law of the People’s Republic of China intervenes in the definition of standard-essential patents and the setting of criteria for determining unfairly high prices for patent licensing in order to eliminate the adverse effects of specific license fee collection behaviors on competition. The practical situation of the determination of unfairly high price of standard-essential patent licenses in China reflects many problems of the current determination standards, such as the unclear definition of unfairly high price, the deficiency of comparative prerequisites in the comparable transaction method, and the untenable reasoning in the qualitative analysis method. Therefore, the criteria for determining unfairly high prices of standard-essential patent licenses should be improved. The focus should be on quantifying the price in order to analyze its reasonableness for reference of determining the unfairness of the high price. In the determination, the conduct of the patentee and its effects should be evaluated at the same time in order to ensure the comprehensive and objective results of the determination. In order to deal with the variability of unfairly high prices of standard-essential patent licenses, should give discretionary power to law enforcement officers and improve antitrust enforcement in the field of standard-essential patents.