Methodologically in Contrast to WTO Non-Discrimination Principle and with Special Reference to China’s Related Judicial Practice

China - 1 June 2020

Trade topics: Intellectual Property

The kernel of the non-discrimination principle seems to be easily understandable, but actually a specific interpretation of it could be very knotty in the complicated FRAND context. A methodologically comparative illumination can be conducive to uncovering the inherent complexity of the non-discrimination principle. In addition, the non-discrimination prong of FRAND is unavoidably intertwined with non-disclosure agreements between SEP licensors and licensees. To achieve the goal of non-discrimination normally depends on sufficient disclosure of earlier comparable licensing terms regarding royalty rates, but confidentiality-related issues in this domain are still very intractable in reality. As an increasingly important jurisdiction over SEP-based legal disputes, China also encountered the problem of how to appropriately and satisfactorily interpret legal issues regarding the non-discrimination prong. Some potential challenges concerning non-discrimination issues in SEP-based cases in China may lie ahead. The theoretical and practical controversies over the non-discrimination prong of FRAND still exist globally, and thus more in-depth relevant research needs to be done, especially in the face of an upcoming era of unparalleled interconnectivity arising from 5G, IoT, AI, and so on.

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