표준필수특허(SEP)의 전 세계 FRAND 실시료율 결정

This paper proposes a reasonable methodology for calculating the global FRAND (Fair, Reasonable, and Non-Discriminatory) royalty rates for SEPs, to assist courts and arbitration bodies in resolving SEP disputes between patent holders and implementers. It begins by analyzing several existing approaches: the SSPPU approach, the bottom-up approach which may lead to excessive royalty stacking, the top-down approach as an alternative to the bottom-up approach, and the increasingly popular assessing comparable license approach.　Through cases, the paper examines the SSPPU approach in contrast to the Entire Market Value Rule, assessing both its practical utility and its limitations. Regarding the bottom-up approach, it explores the difficulties in applying this approach to SEP cases involving multiple patents and clarifies its relationship with the top-down approach. The top-down approach calculates the total royalty rate for all SEPs and then derives the rate for the specific SEP in question by applying its proportional contribution to the standard. The assessing comparable license approach determines the appropriate royalty rate for the SEP by evaluating and comparing it to royalty rates in existing license agreements involving similar technologies.　The paper provides a detailed explanation of the calculation processes involved in the top-down and assessing comparable license approach through key cases such as TCL v. Ericsson and Unwired Planet v. Huawei. It then focuses on improvements to the assessing comparable license approach introduced in the recent case of InterDigital v. Lenovo, particularly the use of adjustments. These include adjustments based on the distribution of product sales across different standards, geographic regions, and the scope of patent coverage. The court effectively applied a geographic adjustment factor to reconcile the differences between the existing license and the target license.　Furthermore, the paper proposes improvements to the top-down method in determining the total royalty cap, assessing standard-setting organization (SSO) databases, and evaluating the contribution of the target SEP to the relevant standard. Finally, the paper analyzes the possibility that Korean courts may determine global SEP royalty rates by examining four dimensions: the principle of good faith, international precedents, interpretive frameworks under the Korean Civil Procedure Act, and Korean companies’ active participation in standard-setting activities. The ultimate goal of this paper is to present a methodologically and legally sound foundation for Korea to adjudicate global FRAND royalty rates.