E起計量打基礎_受制於自願性F / RAND承諾的SEP專利救濟政策的聲明 No. 46
E起計量打基礎 By 周隆亨 (Henry Chow)_20191224
受制於自願性F / RAND承諾的SEP專利救濟政策的聲明1,2
SEP 與 F/RAND Commitments 之間的關係
SEP：具有標準特性關鍵的專利(Standard-Essential Patent)
F/RAND Commitments：公平、合理且非歧視性的承諾
A patent owner’s F/RAND commitment is a relevant factor in determining appropriate remedies, but need not act as a bar to any particular remedy*, as to the following new policy, 2019.12.19.
F/RAND承諾不能成為阻礙技術創新和一些特別的專利救濟措施，甚至傷害大眾生活福祉提升的唯一專屬憑藉。
According to USPTO, NIST, and the DOJ, along with other agencies and courts in the United States and internationally, it is issued: Policy Statement on Remedies for SEPs Subject to Voluntary F/RAND Commitments, December 19, 20191.
*Although this statement, like the 2013 policy statement2, focuses on remedies for the infringement of standards-essential patents subject to a F/RAND commitment, there are no special rules limiting the remedies available for the infringement of any standards-essential patent, whether subject to a F/RAND commitment or not. Remedies for infringement of all standards-essential patents are determined pursuant to the prevailing judicial precedent (司法判例) and statutes on patent remedies (專利救濟法) according to the facts of each case, including the terms of the particular F/RAND commitment.
Reasonable and non-discriminatory (RAND) terms, also known as fair, reasonable, and non-discriminatory (FRAND) terms, denote a voluntary licensing commitment that standards organizations often request from the owner of an intellectual property right (usually a patent) that is, or may become, essential to practice a technical standard. Put differently, a F/RAND commitment is a voluntary agreement between the standard-setting organization and the holder of standard-essential patents. U.S. courts, as well as courts in other jurisdictions, have found that, in appropriate circumstances, the implementer of a standard—that is, a firm or entity that uses a standard to render a service or manufacture a product—is an intended third-party beneficiary of the FRAND agreement, and, as such, is entitled to certain rights conferred by that agreement.
A standard-setting organization is an industry group that sets common standards for its particular industry to ensure compatibility and interoperability of devices manufactured by different companies. A patent becomes standard-essential when a standard-setting organization sets a standard that adopts the technology that the patent covers.
Because a patent, under most countries’ legal regimes, grants its inventor an exclusive right to exclude others from making, using, selling, or importing the invention, a standard-setting organization generally must obtain permission from the patent holder to include a patented technology in its standard. So, it will often request that a patent holder clarify its willingness to offer to license its standard-essential patents on FRAND terms. If the patent holder refuses upon request to license a patent that has become essential to a standard, then the standard-setting organization must exclude that technology. When viewed in this light, the FRANDcommitment serves to harmonize the private interests of patent holders and the public interests of standard-setting organizations. Many scholars have written about these topics, as well as a variety of other legal and economic issues concerning licensing on F/RANDterms.
Ref: 1) Policy Statement on Remedies for SEPs Subject to Voluntary F/RAND Commitments, USPTO, NIST, and the DOJ, December 19, 2019.
2) New SEP remedies policy statement from US government agencies is good news for licensors | IAM, Dec. 21, 2019.
(https://www.iam-media.com/frandseps/uspto-doj-and-nist-frand)
鵝湖民國學案藏經閣 