표준필수특허(SEPs)의 FRAND 실시료 산정 기준에 관한 연구

Recently worldwide disputes related to SEPs are increasing and the FRAND royalty associated with FRAND commitments of SEPs holders is centered on the disputes, but there are not any well-established standards for determining FRAND royalty of SEPs. Therefore this paper conducted in-depth analyses on important decisions by the courts in the United States and EU that dealt with SEPs related litigations. The paper suggests additional corrections of the Microsoft factor, a framework of FRAND royalty determination proposed in the Microsoft v. Motorola decision even though it was a modification of traditional Georgia-Pacific factors widely used to calculate the royalty rate in patent infringement litigations for fitting the particular circumstances of FRAND-encumbered SEPs. More specifically, the Microsoft factor should be modified by actualizing the starting point of hypothetical negotiation, adopting the incremental value rule, clarifying requirements of comparable licenses, and establishing the principle of selecting the appropriate royalty base in order to determine FRAND royalty of FRAND-encumbered SEPs. The procedural validity of FRAND licensing negotiations could be also used as a standard determining FRAND royalty of FRAND-encumbered SEPs in disputes because of continuous debates on methodologies calculating FRAND royalty.