Foundational Factors for China’s Determination of FRAND Rates

Foundational Factors for China’s Determination of FRAND Rates By He Jing (Anjie Law Firm)1

In May 2018, the appellate court in China’s Guangdong Province, where some of largest Chinese mobile handset manufacturers are based, issued special judiciary guidelines in dealing SEP cases. One of the most interesting provisions suggested that at least the Guangdong court was willing to adjudicate the global FRAND rates, at the request of the litigants.  While we have not seen any such global rates made by any of the Chinese courts, it seems to many of us that Chinese judges, whether in Shenzhen or in the Intellectual Property Court in the Supreme Court, may sooner or later encounter opportunities to make a ruling over the rate determination. 

This article will briefly discuss some of the foundations China should focus in developing if the courts are genuinely interested in coming out such global rates with credibility. FRAND rates are global in nature and any of such decisions have global significance.  Whether or not the courts are the ideal place for handling such disputes, judges are better ready soon after the opportunities come.

Loopholes in Jurisdictional Rules

Generally speaking, Chinese courts may exercise jurisdiction over FRAND cases through a special FRAND fee dispute cause of action or anti-monopoly cause of action.  The FRAND fee dispute cause of action originated from Huawei v. InterDigital case back in 2013.  The an

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