By He Jing

In recent years China’s courts and antitrust authorities have increasingly played significant roles in setting FRAND rates for the wireless communication industry. There are doubts and concerns about the fairness and credibility of the rates determined in China. This article reviews various topics. Such as determining the royalty stack, arbitration, trade policy, comity as well as operative details such as the use of expert witnesses and the protection of confidentiality. The author believes that all stakeholders that are genuinely interested in China’s FRAND practices should work together in open and transparent dialogue to minimize risks and unpredictable outcomes.

By He Jing1

 

I. BACKGROUND

China’s courts and antitrust authorities have increasingly played active roles in setting fair, reasonable and non-discriminatory (“FRAND”) royalty rates for the wireless communication industry. The Shenzhen court applied a very low rate in Huawei v. InterDigital back in 2014, which was vacated as a result of a settlement. The Beijing Intellectual Property Court and the higher people’s court affirmed the rate for China’s own WiFi standard in favor of a China-based technology company (IWNCOMM), in 2017. In September 2019, Nanjing Intellectual Property Court issued the China FRAND rates for Conversant’s 3G/4G patent portfolio. Of course, the most influential decision is the anti-monopoly enforcement authority’

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