중국법상 FRAND확약의 법적 성질- 계약법적 논의와 특허권행사의 한계, 성실협상의무를 중심으로 -

The FRAND Declaration origins from the international property right policy set by Standard-Setting Organizations (SSOs), which means that the owners of Standard Essential Patents (SEPs) declare to license Standard Essential Patents to potential licensees in Fair, Reasonable, and Non-Discriminatory terms. However, due to the ambiguity of the FRAND Declaration and the lack of explicit explanation from the SSOs, courts become the main force in interpreting and enforcing the FRAND declaration. In the meantime, the absence of legal basis of FRAND declaration also cause disputes concerning its legal character or nature. Clarifying of the legal character of the FRAND declaration would be helpful to clarify the theoretical basis and legal theory in SEP-based infringement cases. It is also an issue which must be solved in the era of “The Global Standards Wars”. Noteworthy, courts in many countries, including China, have interpreted FRAND declaration based on different theoretical grounds, but have shown an identical attitude in clarifying the duty to negotiate in good faith. The Nature of FRAND Declaration in China has been determined as pre-contractual obligations. However, taking consideration in combination with China’s current civil legal system, it is more reasonable to regard the FRAND declaration as an invitation to offer which establishes a SEP holder’s duty to negotiate in good faith.